STANDARD TERMS AND CONDITIONS
1. “Software” means the object code versions of any software programs stated in a Specification and any updates to the software programs that we may provide to you pursuant to this Agreement. “Hardware” means the equipment stated in a Specification.
We will deliver, install, and test the Software and Hardware product(s) (the “Product(s)”) as specified in the specification (the “Specification”) contained in the quotation or RFP response (each and together referred to as “ Quotation”) attached hereto as Exhibit A, when it is finally agreed to and approved in writing by you and us. We will also provide support and training services as specified in the Specification. This Agreement shall govern all future Quotations that you and we agree to in writing from time-to-time hereafter and which reference this Agreement (such future Quotations being incorporated herein).
2. Subject to the terms of this Agreement we hereby grant to you a non-exclusive license, without the right to sublicense, to the Software specified in the Specification to (i) install, use and display the Software on the designated systems; and (ii) use the documentation solely in connection with the authorized use of the Software. All Software is licensed and not sold. We retain all rights not specifically grant ed in this Agreement. The terms of use of the Software are contained in the End User License Agreement and Warranty (“EULA”), attached hereto as Exhibit B.
3. You shall respect our intellectual property, not use our trademarks or logos without our permission, and limit access to documentation that we provide you to your library staff. We own or have a license to use the Software. Under no circumstances will you transfer our documentation (including manuals) , the Software, or the license granted hereunder to another entity without our prior written approval. Any transfer in violation of this provision shall be of no power or effect. You agree to not provide any of our Products, Software, documentation, confidential information or licenses to a competitor of our s. You may not publish technical information about our Products in a forum that is publicly accessible. Your use of the Product on a protected Intranet is acceptable provided that only your staff has restricted access to the system.
4. We reserve the right to list you as our customer on our customer list. You have final review and approval over any proposed press release or announcement about the installation of our products at your Library.
5. A copy of our insurance certificate is attached as Exhibit C.
6. Price Quotations
A. The estimated price for crating, freight and delivery to destinations is listed separately on the Quotation. Freight charges may vary based on actual shipping addresses per item. Prices quoted are fixed for twelve (12) months from the Effective Date of this Agreement.
B. When we introduce new Products, the discounted prices will be added to the “PICS Estimate” (as published in EnvisionWare’s Customer Center for your library).
7. You agree that other public institutions may acquire products directly from Envi sionWare using the prices as published in the PICS and updated PICS described in Section 6 above.
EXHIBIT E, PROJECT PB22-093
8. Our payment terms are as follows:
A. All purchases except maintenance and subscription or recurring monthly, quarterly or annual services: Payment terms are set forth in each Quotation. i) Custom or built-to-order Products include, but are not limited to, sorters, 24-Hour Library, kiosks and other products which may be noted in the item description in the Quotation as being custom- built or made to order.
ii) Any Quotation that includes custom or built-to-order Products require an advance deposit, which must be received by EnvisionWare before orders can be placed with our factories. The items include but are not limited to, self service kiosks and c ountertop systems, 24 -Hour Libraries, Holds Lockers and related remote library automated systems, and automated materials handling systems. The deposit is non-refundable.
iii) Acceptance Criteria are developed in advance of delivery. Acceptance tests are conducted upon installation of each component for which Acceptance Criteria have been defined. iv) When all tests pass for items on a SOW (Statement of Work) , the Customer must confirm an Order Acceptance.
B. Maintenance: Full payment prior to expiration of your first-year warranty or prior to the expiration of the current maintenance period. Once paid there are not maintenance refunds.
C. Subscription and rental services: Full payment prior to expiration of your current, fully paid month, quarter or year as defined in your subscription or rental agreement.
9. We are not responsible for delays caused by non -working library equipment, viruses or worms on your systems, or any other delays caused by you, your staff or your consultants. If you cause delays that result in added expense to us, we will issue a change order to recover for those losses and you will pay for such losses. We will notify you promptly and in writing if there is a delay that will add expense. We will be responsible for delays caused by us.
10. You will provide adequate space, network connections, and power as outlined in the Specification. For building modifications, we agree to provide technical documentation that clearly defines the requirements for the modifications. If an error in our documentation results in construction error, we will be responsible for such error, but we retain the right to obtain competitive bids to mitigate the costs of remedy. You are responsible for ensuring the modifications are completed prior to our scheduled installation time. If modifications are not completed or are incorrect, you will be responsible for correcting the errors and for payment of the costs associated with the lost time and travel of our staff.
11. We will install the Product on your computers (per the Specification) or those provided by us, provided you make a library technical staff person available to provide administrative access and aid us in resolution of any issues relating to network connection, permissions, or other things over which we have no control.
12. Notwithstanding the warranty period start date stated in the EULA , the applicable Product warranty period will commence upon your acceptance of the items specified in the applicable Quotation and according to the criteria listed in any SOW. We will maintain the Product during the applicable warranty period. You will be responsible fo r basic troubleshooting and providing assistance to our support staff EXHIBIT E, PROJECT PB22-093
that will assist via email, telephone, remote a ccess, chat or other tools that provide access and communication with you and your system. If an on -site visit is required because of a hardware failure that is not easily remedied by a simple swap of a module, we will come on site at no additional expense to you. The performance terms of the Software Product Warranty (as defined and set forth in the EULA) are superseded if the Platinum or PlatinumPLUS Maintenance Program (as defined and described herein) apply to you . Support is provided for the particular Products or Services according to the applicable Maintenance Program as set forth in the Quotation.
13. You agree to provide remote access via the Central Management system we install as part of this Product.
If you do not agree, we will increase your annual maintenance agreement cost by 10%.
14. During the warranty period, we will respond to your questions and aid you in the support of your Product as stated in the applicable Maintenance Program. If you need additional installation services for expansion of your system or reinstallation of systems because of your hardware failures or related issues, our Professional Services implementation consultants will be available to help you for a fixed rate via telephone or on-site as defined in the price schedule set out in the Quotation.
15. We support only the then-current release of the given Software and the most recent previous release. We will provide notice of available Software updates, which you may download and install on your systems for as long as you are covered under the Software and Product warranty or a Maintenance Program. In order to know about these updates, you must subscribe to our customer forum or Twitter feed.
16. When you update the Software, we will answer your questions for these processes and help you to understand how to perform your upgrades. If you wish to have us perform your upgrades, we will provide options for acquiring those services from our Professional Services group.
17. Upon completion of implementation to your satisfaction, we will ask that you serve as a reference for us to other libraries that are considering similar purchases.
18. You shall pay us according to the payment terms in the Quotation. If you do not provide timely payment, we may discontinue providing Services and support to you. In t he event that you are ever dissatisfied, we ask that you contact us and provide an opportunity to remedy any problems. You may escalate your service request at any time by sending an email to [email protected].
19. You may purchase additional Maintenance Programs for future years and lock in a rate for price increases if you pay for such additional maintenance in advance with your original order. If you do not pay in advance for maintenance, near the end of the warranty period or each successive maintenance renewal period, you will receive an invoice for the annual maintenance agreement. We will provide a separ ate value for Software and H ardware for Time and Materials and the Gold Support Level Maintenance Programs so that you can decide to cover your entire system or only Software. If you elect Hardware coverage, all items must be covered. Platinum and PlatinumPLUS customers agree to maintenance for all Products in use. For all Maintenance Programs, if you retire an item and take it out of service you may contact maintenance services to have the item removed from your maintenance record. You will not have Hardware protection without an agreement, which also means that you will not have access to firmware updates. If you choose not to purchase Hardware coverage, the alternative is a Time and Materials charge plus expenses. When you are covered by Hardware maintenance, you have the assurance of expanded support, which cannot be provided under the same service level under the Time and Materials Maintenance Program. If you fail to pay your maintenance invoice on time, you will EXHIBIT E, PROJECT PB22-093
receive a 30 -day grace period after which your support services and access to downloads may be suspended until payment is received.
20. Maintenance agreements are available under one of four “Maintenance Programs” described below.
The program you have elected is stated in the applicable Quotation.
A. “Standard Support Hours ” are 8:30 a.m. to 7:00 p.m. Eastern Time, Monday through Friday, excluding December 25 and January 1.
Our goal for customers under a maintenance agreement is to answer 90% of all incoming support calls with a live technician. Platinum and PlatinumPLUS customers have 24x7x365 access to Support.
B. Maintenance Programs
i) Time and Materials: If you are not covere d by a maintenance agreement, when service of any kind is required, you may contact support during Standard Support Hours. There is no after-hours support available in the Time and Materials Maintenance Program.
Support services include:
• 90% of incoming calls answered with a live technician • Response time to incoming calls is 4 hours during Standard Support Hours • Dispatch of onsite service within 2 business days of determining a site visit is required • Guaranteed onsite response arrival of 3 business days aft er determining a site visit is required
• Maximum time to attempt a remedy of a major outage is 5 business days • North America toll-free calling: 888-409-0888
• Access the user-to-user forum, provided that signup occurs via the Customer Center prior to expiration of the warranty period and prior to transitioning to Time and Materials status.
Support process:
• The support technician will forward terms for time and materials for your acceptance per support case.
• Upon authorized email acceptance of the terms, the technician will provide the requested services at our then-current hourly rate.
• There is a minimum charge of one hour per incident. All hardware, labor and travel expenses will be invoiced.
• Upon determination that a site visit is required, the support technician will provide you with a quote for time, estimated materials and expenses, using EnvisionWare’s flat expense rates.
• Upon quote acceptance, our goal is to dispatch a technician t he same day for a determination made by noon Eastern time or the next business day for approvals received after noon Eastern Time.
• The maximum interval for onsite arrival is 3 business days after determining that an onsite visit is required and approval is received.
EXHIBIT E, PROJECT PB22-093
• You will be invoiced for the total number of hours for remote and onsite work plus the total number of onsite travel expenses.
Support services do not include:
• Access to LiveChat, the Knowledge Base, software downloads or documentation after the expiration of a warranty.
Note: Customers must download the electronic documentation for their installed versions of Products before transitioning to Time and Materials. • Software patches and new versions of Software.
• If a Software or firmware update is required, you may have the option to catch up on lapsed maintenance (see Section 2 1) or you may pay for a new license, if available, based upon whichever is lower in cost.
• There is no separately available software license for embedded systems such as sorters (AMH) and 24-Hour Libraries and turnkey hardware/software systems of which the Software is part of the item bundle.
• Hardware Revisions, which are included in maintenance for sorters (AMH) and 24 - Hour Libraries, may not be available for purchase under Time and Materials. • The EnvisionWare (10) year life guarantee program.
• After (5) years, “ten (10) year systems” will become part of an End of Life program in which maintenance automatically escalates in year 5 and continues to rise each year thereafter according to the limits set forth in Section 3. • An End of Life notice may identify certain parts or modules which may no longer be available.
• If the at-risk items fail, we will attempt to extend the life of your system by providing a quotation for a replacement module or alternative sub-system. • If options to extend the life are not available, we will provide a reduced price upgrade quotation to replace your system if an upgrade is available. ii) Gold Level Support: Services are available via EnvisionWare’s Customer Center portal and via toll-free telephone in North America during Standard Support Hours. There is no after -hours support available in the Gold Level Maintenance Program.
Support services include:
• Standard Support Hours
• 90% of incoming calls answered with a live technician • Response time to incoming calls is 4 hours during Standard Support Hours • Dispatch of onsite service within 1 business day of determining a site visit is required • Guaranteed onsite response arrival of 2 business days after determining a site visit is required
• Maximum time to attempt a remedy of a major outage is 3 business days • North America toll-free calling: 888-409-0888
• LiveChat via the Customer Center during Standard Support Hours • Responses to online support cases
EXHIBIT E, PROJECT PB22-093
24-Hour Services
• User-to-user forum (24 hour)
• Downloadable Software defect fixes
• Downloadable new Software releases
• Downloadable electronic documentation
• Searchable Knowledge Base
• Create and view support cases
• Online Defect/Enhancement view
• Online Project Status Tracking
• Library marketing kits
Support Services do not include:
• Preventative maintenance service
iii) Platinum Level Support : Services available via the EnvisionWare Customer Center portal during Standard Support Hours and via toll-free telephone in North America 24x7 365 days per year. Routine services should be scheduled during normal support hours. After hours support is for emergency calls only and must be made via the toll -free telephone number using your Platinum support access PIN.
Our objective is to have calls answered within 2 hours during all times and onsite response generally dispatched within 4 hours of determining that a site visit is required. The maximum interval for onsite arrival is 24 hours after determination that a site visit is required.
The Platinum Level Support program requires continued coverage of all items purchased from EnvisionWare that remain in use by you except for consumables.
Support services include:
• Telephone support hours 24 x 7 x 365
• 90% of incoming calls answered with a live technician • Response time to incoming calls is 2 hours
• Dispatch of onsite service within 4 hours of determining a site visit is required • Guaranteed onsite response arrival of 24 hours after determining a site visit is required • Maximum time to attempt a remedy of a major outage is 48 hours • North America toll-free calling: 888-409-0888
• LiveChat via the customer center during Standard Support Hours • User-to-user forum (24 hour)
• Downloadable Software defect fixes
• Downloadable new Software releases
• Downloadable electronic documentation
• Searchable Knowledge Base
• Online Customer Center Support Case Management (24 hour – response during Standard Support Hours)
EXHIBIT E, PROJECT PB22-093
• Online Defect/Enhancement view
• Online Project Status Tracking
• Library Marketing Kits
• Preventative Maintenance:
o If a sorter (AMH) or a 24 -Hour Library™ unit is purchased, a Preventative Maintenance site visit is performed within 60 days of each annual renewal. o Continual, consecutive Platinum Level Support renewals assure a long life for Products covered by Preventative Maintenance.
o The lifetime coverage limit is specified on a per-item basis and in no case exceeds a guaranteed lifetime of ten (10) years.
o Sorters (AMH) and 24 -Hour Libraries are guaranteed for a lifetime of ten (10) years provided there is continued Platinum maintenance coverage from the effective date.
o Any lapse in coverage for a period of more than 30 days will void the ten (10) year guarantee.
iv) PlatinumPLUS Level Support : Services available from a Resident Technician via the EnvisionWare customer center portal and via a dedicated telephone number 24x7, 365 days per year.
“Resident Technician” means a local field technician employed by us that dedicates 50% of his or her time to service your library. The Resident Technician’s priority is focused on your uptime.
Our objective is to have telephone calls answered by the Resident Technician within 1 hour during all times, to have onsite response dispatched within 2 hours of determining that a site visit is required, and to have the maximum interval for onsite arrival to be 6 hours or less after determining that a site visit is required.
PlatinumPLUS Level Support requires continued coverage of all Software and Products purchased from EnvisionWare that remain in use by you except for consumables.
Support services include:
• Support Hours: 24 x 7 x 365
• 95% of incoming calls answered with a live technician • Response time to incoming calls is 1 hour
• Dispatch of onsite service within 2 hours of determining a site visit is required • Guaranteed onsite response arrival of 6 hours after determining a site visit is required • Maximum time to attempt a remedy of a major outage is 36 hours • North America Toll Free calling: 888-409-0888
• LiveChat via the Customer Center during Standard Support Hours • User-to-User Forum (24 hour)
• Downloadable software defect fixes
• Downloadable new software releases
• Downloadable electronic documentation
• Searchable Knowledge Base
EXHIBIT E, PROJECT PB22-093
• Online Customer Center Support Case Management (24 hour – response during Standard Support Hours)
• Online Defect/Enhancement view
• Online Project Status Tracking
• Library Marketing Kits
• Preventative maintenance:
o This service is continual and performed incrementally each month by the Resident Technician and/or other EnvisionWare technicians and engineers as required. o The Preventative Maintenance service includes proactive replacement of parts, routine cleaning, system updates and performance testing and certification. o Continual, consecutive PlatinumPLUS renewals assures a long life for Products covered by Preventative Maintenance.
o The lifetime coverage limit is specified on a per-item basis and in no case exceeds a guaranteed lifetime of ten (10) years.
o Sorters (AMH) and 24 -Hour Libraries are guaranteed for a lifetime of ten (10) years provided there is continued PlatinumPLUS maintenance coverage from the effective date.
o Any lapse in coverage for a period of more than 30 days will void the ten (10) year guarantee.
• The Resident Technician can provide or coordinate ongoing training and orientation for new staff.
• Spare parts are stocked locally. You must provide network access, locked storage and facility and computer access to facilitate the proactive delivery of services. • Direct escalation path to the Director of Support.
• In addition to Support, Preve ntative Maintenance, and proactive upgrades, the Resident Technician will be available for consultation and planning to aid in rollout and system - wide upgrade programs that include any EnvisionWare applications. The Resident Technician can provide insight into pending releases and can serve as your advocate for product enhancements.
• The Resident Technician will collaborate with your staff to develop a routine schedule for reporting and status meetings.
• When a Resident Technician is scheduled away from t he local area, such as during vacation time, a backup technician will be assigned to provide the PlatinumPLUS services. The backup technician will provide the same response times as the Resident Technician.
C. Should we fail to achieve the applicable perform ance objective for the Platinum or PlatinumPLUS Level Maintenance Programs measured as an average of all failures over a calendar quarter not meeting the applicable objective of all incidents and if you have notified your dedicated EnvisionWare technician or our Director of Support via email (with appropriate details of the case number and the failure) no later than thirty (30) calendar days from the end of the calendar quarter in which failure occurred, we will credit the next invoice to you in the amount of one month of maintenance as prorated for that item being serviced . The measurements will reset each calendar quarter.
D. A failure to achieve a service objective shall not be a breach of th e maintenance agreement or give rise to a credit if and to the extent that failure to achieve a service objective was primarily caused by any one or more of the following:
EXHIBIT E, PROJECT PB22-093
i) prioritization of tasks or reduction of resources requested by you in writing; ii) occurrence of a Force Majeure Event (as defined herein); iii) any breach, failure to perform an agreed upon responsibility, user error or other act or omission of you or your customers, third -party contractors or agents that prevents us from achieving the applicable service level; or
iv) problems originating from your facility, network, hardware, software, hosting or storage provider, server or other provider, that are outside the scope of our services.
E. Force Majeure Events. Except for payment obligations by you, neither party shall be held responsible for any delay or failure in performance of any obligation under this Agreement to the extent that delay or failure is caused by fire, flood, explosion, war, act of terrorism, strike, embargo, government requirement, pandemic, civil or military authority, act of God, act or omission of carriers or other similar causes beyond its control (each, a “ Force Majeure Event”). If any Force Majeure Event occurs, the party delayed or unable to perform (“ Delayed Party”) shall give prompt notice to the other party (“ Affected Party”), and the Delayed Party, upon giving notice to the Affected Party, shall be excused from performance under this Agreement for the duration of the Force Majeure Event, provided, however, that the Delayed Party shall take reasonable steps and cooperate with the Affected Party to mitigate the cause of non -performance and shall resume performance hereunder with dispatch when the cause is removed; and provided further that if , within sixty (60) days , the Force Majeure Event persists and continues to cause of non -performance, the Affected Party may terminate this Agreement.
21. Re-establishing Maintenance After a Lapse:
A. If your budget or another reason prevents you from acquiring a M aintenance Program, or local ordinance prevents an annual agreement in advance of a fiscal period, your system will not be disabled by expiration of the maintenance agreement, but, as of the d ate of expiration, you will not have further access to updates, upgrades or technical support.
B. If you later choose to resume maintenance, you will be charged as follows:
i) the full amount of the next twelve (12) months of maintenance; and ii) any time and costs for updating Hardware or Software or for on-site visits; and iii) a catch-up fee as follows:
(1) for Software maintenance: 50% of the amount of maintenance that would have been paid if maintenance had been maintained (calculated on an annual basis), and (2) for Hardware maintenance: 100% of the amount of maintenance that would have been paid if maintenance had been maintained (calculated on an annual basis), subject to the availability of support for the Hardware you have at the time of re-establishing maintenance.
C. The amounts above cover the continuing development and evolution of the system during your lapsed period. The fact that you did not avail yourself of telephone or other support services during the EXHIBIT E, PROJECT PB22-093
period the Product was covered by maintenance is no caus e for adjustment. If you have replaced Hardware that is no longer supported by us, in order to be eligible for re -establishment of maintenance on the Hardware you will need to purchase new Hardware from us. As part of re - establishing maintenance, we will provide you with the updates to the Software D. Re-establishment of lapsed maintenance is permitted only once.
22. Limitation of Liability . SOME JURISDICTIONS, INCLUDING MEMBER COUNTRIES OF THE
EUROPEAN ECONOMIC AREA, DO NOT ALLOW THE LIMITATION OR EXCLUSION OF
LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATION OR EXCLUSION BELOW MAY NOT APPLY TO YOU.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF
WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO
EVENT WILL ENVISIONWARE OR ITS LICENSORS BE LIABLE TO YOU FOR ANY LOSS OF
USE, LOST DATA, FAILURE OF SECURITY MECHANISMS (OTHER THAN THOSE
CONTAINED IN THE SOFTWARE), INTERRUPTION OF BUSINESS OR ANY SPECIAL,
CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY OR SIMI LAR DAMAGES,
INCLUDING ANY LOST PROFITS ARISING OUT OF OR RELATING TO THE PERFORMANCE
OF THIS AGREEMENT, EVEN IF ENVISIONWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION APPLIES IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION, CLAIM OR DEMAND, INCLUDING CONTRACT OR TORT.
IN NO CASE SHALL ENVISIONWARE’S OR ITS LICENSORS’ TOTAL LIABILITY:
(A) FOR ANY PRODUCTS COVERED UNDER THIS AGREEMENT, EXCEED TWO (2) TIMES
THE PURCHASE PRICE FOR THE PRODUCTS OR
(B) FOR ANY PROFESSIONAL SERVIC ES, EXCEED THE FEES PAID BY YOU FOR THE PROFESSIONAL SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT WHICH DIRECTLY CAUSED THE DAMAGES ALLEGED.
23. All notices required to be given pursuant to this Agreement shall be given in writing and delivered by fax, hand, certified first -class mail, email or overnight courier, addressed to the receiving party at the address stated on the first page of this Agreement. Each party will provide written notice to the other party in the event of a change in the contact information in accordance with this Section. Notice shall be deemed given (i) on the date when sent by fax to the fax number specified below, (ii) on the date when delivered by hand to the address specified below, (iii) three (3) days after mailing by certified first-class mail, (iv) one (1) day after delivering to a recognized overnight delivery carrier, or (v) on the date when sent by electronic mail, provided that confirmation is sent by one of the other foregoing methods.
24. This Agreement constitutes the entire agreement and understanding between the parties concerning the subject matter hereof, and cancels, terminates, and supersedes all prior written and oral understandings, sales and promotional materials, agreements, proposals, pr omises and representations of the parties or any other person with respect to any subject matter contained herein. No representation or promise hereafter made with respect to the subject matter of this Agreement, nor any modification or amendment of this Agreement, shall be binding unless in writing and signed by the parties. The provisions of these standard terms and conditions shall control in the event of any conflict with any provisions in the EULA.
EXHIBIT E, PROJECT PB22-093
25. Professional Services . Upon agreement between the par ties, we shall provide you with professional consulting or training services according to the applicable statement of work (“SOW”, and such services “Professional Services”), a sample of which is attached hereto as Exhibit D. The parties acknowledge that the scope of the Professional Services provided hereunder may consist solely of any or all of the following:
A. assistance with Software or Hardware installation, deployment, and usage; B. training in use of the Software or Hardware; and
C. delivery of additional related Software or code proprietary to us.
You shall have a limited license right to use any deliverables including any documentation, Software, training materials or other work product delivered as part of the Professional Services (“Deliverables”) solely in connection with your permitted use of the Software, subject to all the same terms and conditions herein as apply to your Software license, and subject to any additional terms and conditions provided with the Deliverables. You may order Professional Services under a SOW describing the work to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information. Each SOW must be signed by both parties before we will commence work under such SOW.
If the parties do not execute a separate SOW, the Services shall be provided as stated on the Quotation.
You shall reimburse us for reasonable travel and lodging expenses as incurred.
26. Project Acceptance: Upon the delivery of all quoted services, ENVISIONWARE will present a form for Project Acceptance, which CUSTOMER must acknowledge by electronic acceptance. In the event that CUSTOMER does not complete the acceptance but CUSTOMER has beneficial use of t he software and/or hardware, the Project will be deemed as having been accepted.
27. Termination: Either you or we can terminate this Agreement in the event of a material breach thereof by providing a written notice identifying the breach to the party alleged to have committed the breach, provided that, other than payments due hereunder, such breach is not cured within thirty (30) days of the receipt of written notice by the party being accused of such breach. If you terminate this Agreement without cause, there will be no refund of any amounts paid and amounts payable will continue to be due.
28. This Agreement is governed by the laws of the State of Georgia. However, if Customer is domiciled in the US, then:
(i) this Agreement is governed by the laws of the stat e of Customer’s principal business address (as provided on the first page of this Agreement), and
(ii) section 15 of the EULA (Governing Law; Jurisdiction and Venue) is hereby amended as follows:
(A) delete “the State of Georgia” and
(B) insert the state as of the Customer’s principal business address, and the remainder of the sentence remains unchanged.
29. Term: This Agreement shall be in effect for one (1) year and will renew annually unless canceled by either party with sixty (60) days’ written notice.
EXHIBIT E, PROJECT PB22-093
Attachments:
Exhibit A: Quotation
Exhibit B: EULA
Exhibit C: Insurance Certificate
Exhibit D: Sample Professional Services Statement of Work Exhibit E: Payment Card Industry Data Security Standard for U.S. Customers [Remainder of this page intentionally left blank]
EXHIBIT E, PROJECT PB22-093
Exhibit A – Quotation(s)
[To be attached]
ITEMS NOTED IN THE QUOTATION:
• A reference to this main Agreement stating the agreement number • Maintenance agreement program level: Gold, Platinum or PlatinumPLUS • Rate schedule for Professional Services Implementation Consultants • Rate schedule for flat fee travel and related expenses EXHIBIT E, PROJECT PB22-093
Exhibit B – End User License Agreement and Limited Warranty (EULA) ENVISIONWARE, INC.
END USER LICENSE AGREEMENT AND LIMITED WARRANTY (“EULA”) IMPORTANT: PLEASE READ THE TERMS AND CONDITIONS OF THIS EULA CAREFULLY BEFORE USING THE SOFTWARE. ENVISIONWARE, INC. (“ENVISIONWARE”) IS WILLING TO
LICENSE THE SOFTWARE TO YOU AS THE INDIVIDUAL, THE ORGANIZATION, OR THE LEGAL ENTITY THAT WILL BE UTILIZING THE SOFTWARE (REFERRED TO AS “YOU” OR “YOUR”) ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS EULA.
UPON AND AS OF THE DATE ENVISIONWARE SENDS AN EMAIL TO YOU (THE “EFFECTIVE DATE”) ISSUING CREDENTIALS TO LOG INTO ENVISIONWARE’S WEBSITE
FROM WHERE THE SOFTWARE MAY BE DOWNLOADED, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS EULA.
IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS EULA, DO NOT ATTEMPT
TO DOWNLOAD OR INSTALL THE SOFTWARE, OR, IF INSTALLED, MAKE NO FURTHER USE
OF THE SOFTWARE, AND NOTIFY IN WRITING ENVISIONWARE OR THE RESELLER FROM WHOM IT WAS ACQUIRED WITHIN THIRTY (30) DAYS OF PURCHASE, AND THE PURCHASE PRICE WILL BE REFUNDED.
1. License: The software and documentation (collectively the “Software”) are owned by and are the property of EnvisionWare or its licensors and are protected by copyright and other intellectual property laws. Some licensors may be express or intended beneficiaries of this EULA. Subject to all of the terms and conditions of this Agreement, EnvisionWare grants you a limited, non-exclusive, worldwide, non- transferable, non-sublicensable license to use the Software for which you have been issued a Product Key by EnvisionWare or an authorized distributor or reseller, but only in accordance with (i) the documentation, (ii) the restrictions contained herein and any restrictions on the applicable invoice, and (iii) the number of authorized users. Portions of some Software modules are licensed from Artifex Software, Inc. Portions of some modules may contain MySQL connector (under the GNU GPL v2 license at http://www.gnu.org/licenses/gpl-2.0.html). Portions of some modules may contain the MS access driver, licensed from Microsoft Corporation. Portions of some modules may be licensed under the Microsoft Reciprocal License (MS-RL) http://opensource.org/licenses/ms-rl. Portions of some Software modules are licensed under the Apache License, Version 2.0; you may not use these files except in compliance with the Apache License. The Apache License is available at http://www.apache.org/licenses/LICENSE-2.0. Unless required by applicable law or agreed to in writing, software distributed under the Apache License is distributed on an “AS IS” BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied. See the Apache License for the specific language governing permissions and limitations under the Apache License. Portions of some Software modules are licensed under the MIT Expat License. This EULA also incorporates the terms of the Verifone Pass Through Terms of Use and Windcave End User License Agreement attached hereto, as applicable to your purchase. This EULA also governs any future releases, revisions, or enhancements to the Software that EnvisionWare may furnish to you. Your rights and obligations with respect to the use of this Software are as follows:
A. You may:
i. use the Software on the quantity and type of computers indicated on EnvisionWare invoice. You EXHIBIT E, PROJECT PB22-093
may make that number of copies of the Software licensed to you by EnvisionWare. ii. make one copy of the Software for archival purposes, or copy the Software onto the hard disk of your computer and retain the original for archival purposes; iii. use the Software on a network, provided that you have a licensed copy of the Software for each computer that can access the Software over that network; and, iv. make printed copies of electronic documentation for your internal use.
B. You may not:
i. transfer, assign, convey, sublicense, rent or lease the Software (or any portion thereof) to another person or entity or unlicensed division, subsidiary, or affiliate (or to anyone other than the entity named as licensee as appearing on the software splash screen), other than to a successor agency, and any transfer in violation hereof shall be of no power or effect; ii. distribute, sell, sublicense, rent, lease or use the Software (or any portion thereof) for time sharing, hosting, service provider or like purposes, except as expressly permitted under this Agreement;
iii. reverse engineer, decompile, disassemble, modify, translate, make any attempt to discover, modify or use the source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions), or create derivative works from the Software (any such modifications shall automatically be owned by EnvisionWare upon creation); iv. utilize any equipment, device, software, or other means designed to circumvent or remove any form of product key or copy protection used by EnvisionWare in connection with the Software, or use the Software together with any authorization code, product key, serial number, or other copy protection device not supplied by EnvisionWare or through an authorized distributor or reseller; v. use the Software to develop or facilitate development of a product which is competitive with any EnvisionWare product offerings;
vi. post or otherwise publish electronic documentation of the Software for access outside the licensed organization;
vii. use a previous version or copy of the Software after you have installed a replacement set or an upgraded version and, upon upgrading the Software, all copies of the prior version must be uninstalled or rendered unusable;
viii. use a later version of the Software than is provided in the email with the login credentials except as provided under the Software Product Warranty, unless you have purchased maintenance and update service or have otherwise separately acquired the right to use such later version; ix. remove any product identification, proprietary, copyright or other notices contained in the Software;
x. provide any product key or login information to a third party; or xi. use the Software or product keys in any manner not expressly authorized by this EULA.
2. Thirty Day Money Back Guarantee: If you are the original licensee of the Software and are dissatisfied with it for any reason, and if at any time during the thirty (30) day period following the Effective Date you email EnvisionWare confirming your complete removal and deletion of the complete product and provide a signed statement to EnvisionWare attesting to removal of all software components, EXHIBIT E, PROJECT PB22-093
then EnvisionWare will provide a full refund, subject to the provisions of the Hardware Return Policy below. Notwithstanding the foregoing sentence, in the event sufficient funds for the performance of this Agreement are not appropriated by you in any fiscal year covered by this Agreement, you may terminate this Agreement by providing thirty (30) days’ prior written notice, provided that you shall pay all amounts owed up to the effective date of such termination and EnvisionWare shall be reimbursed any resulting unamortized, reasonably incurred, nonrecurring costs. EnvisionWare will not be reimbursed any costs amortized beyond the initial term of the Agreement.
3. Hardware Return Policy: Custom printed RFID tags, manufactured, built-to-order or custom- configured Hardware as designated on a Quotation, such as but not limited to, kiosks or sorters, may not be returned or canceled for any reason. Custom items include any item listed in an EnvisionWare quotation, product description or order form as being a custom item, or any item which is modified by EnvisionWare after installation. Standard Hardware products may be accepted for return within ninety (90) days of the date of invoice subject to advance, written approval expressed in the form of an EnvisionWare Return Merchandise Authorization (“RMA”). EnvisionWare, at its sole discretion, may grant the right to return standard Hardware products during this return period. Any such returns are subject to a 20% restocking fee unless EnvisionWare determines that the cause of the return is a result of an error on the part of EnvisionWare, in which case EnvisionWare may waive all or part of the restocking fee. No Hardware product will be accepted for return for ANY reason without a Return Merchandise Authorization issued by EnvisionWare. The RMA number must be clearly displayed on any packaging shipped to EnvisionWare. Products returned without an RMA number on the package will be refused. Any return for any reason, whether for an authorized RMA or for warranty support must be shipped to EnvisionWare freight prepaid. Equipment serviced under warranty will be returned freight prepaid.
4. Limited Warranty; Disclaimer:
A. Software Product Warranty: EnvisionWare warrants that the Software as distributed operate in substantial conformity with the documentation (the “Software Product Warranty”) for a period of one (1) year from the delivery of the Software to you (the “Software Warranty Period”). This is the sole warranty EnvisionWare provides for all Software supplied by EnvisionWare, unless specifically stated otherwise in EnvisionWare’s quotation. EnvisionWare does not warrant that your use of the Software will be uninterrupted or error-free. EnvisionWare’s sole liability (and your sole remedy) in the event of a breach of this Product Warranty will be that EnvisionWare will, in EnvisionWare’s sole discretion, (A) use commercially reasonable efforts to provide you with an error correction or a work-around which corrects the reported non-conformity or (B) if EnvisionWare determines such remedies to be impracticable within a reasonable period of time, refund the money you paid for the Software being returned. EnvisionWare does not warrant that the Software will meet your requirements or that operation of the Software will be uninterrupted or that the Software will be error-free. EnvisionWare provides Software product support through the reseller from whom you purchased the Software or directly from EnvisionWare for a period of twelve (12) months from date of delivery of the Software.
B. Hardware Product Warranty: EnvisionWare warrants that EnvisionWare-branded hardware as distributed will be free from material defects (the “Hardware Product Warranty”) for a period of one (1) year from the date of delivery of the EnvisionWare-brand hardware to you (the “Hardware Warranty Period”). Other Hardware components supplied to you by EnvisionWare that are not manufactured or branded by EnvisionWare are covered by the warranties provided by the product manufacturer.
EnvisionWare shall have no obligation with respect to a warranty claim unless notified of such claim within the applicable Software or Hardware Warranty Period. The term “delivery” in this Section 4 means, with respect to Software, the date of invoice, and, with respect to Hardware, “delivery” means the date that the Hardware is delivered to your facility.
EXHIBIT E, PROJECT PB22-093
C. Exclusions: The above warranties shall not apply: (i) to the extent of issues or problems if the Software or Hardware is used with hardware or software not specified in the documentation; (ii) if any modifications are made to the Software or Hardware by you or any third party; (iii) to defects in the Software or Hardware that are due to accident, abuse or improper use by you or your contractors; or (iv) to any evaluation version or other Software or Hardware provided on a no-charge or evaluation basis.
Any replacement Software or Hardware will be warranted for the remainder of the original applicable Software Warranty Period or Hardware Warranty Period.
D. Professional Services Warranty. For any Professional Services provided pursuant to Section 13 below, EnvisionWare warrants that the services will be performed in a workmanlike manner, and that if any Professional Services are not so performed and if you notify EnvisionWare in writing within thirty (30) days after the provision of the particular Professional Service that the services are not performed properly, EnvisionWare will re-perform such services at no charge to you (the “Professional Services Warranty”). Your sole and exclusive remedy of any breach of this Professional Services Warranty is for EnvisionWare to re-perform such services.
E. THE ABOVE SOFTWARE PRODUCT WARRANTY AND HARDWARE PRODUCT
WARRANTY ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER
EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, ALL OF WHICH ARE SPECIFICALLY DISCLAIMED. THE SOFTWARE
PRODUCT WARRANTY AND THE HARDWARE PRODUCT WARRANTY GIVE YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE AND COUNTRY TO COUNTRY.
F. EnvisionWare uses virus protection scanning software to scan the Software prior to installation and to the best of EnvisionWare’s knowledge as of the installation date, the Software, when installed, does not contain or otherwise introduce any computer virus or any harmful or destructive code which could damage or harm your computers; however, EnvisionWare cannot guarantee that benign or harmful viruses or other malware will not enter your computers or systems.
5. Personal Information:
A. In the event that your (or your users’) use of the Software currently or in the future involves the transmitting, uploading, downloading, storage, management, manipulation or other use of personal information (as defined by the Gramm-Leach-Bliley Act, Payment Card Industry Security Standards Council or other applicable standards or rules relating to electronic transaction processing and personal information, such information referred to herein as “Personal Information”), you agree to the following provisions:
i. You shall maintain as confidential any Personal Information. ii. You covenant that you have, as of the Installation Date become and currently are PCI and HIPAA (as applicable) compliant and shall maintain compliance and/or certification under the PCI (Payment Card Industry), PCI-DSS, HIPAA and other relevant and applicable standards relating to electronic transaction processing and personal healthcare information existing as of the Effective Date and as promulgated thereafter.
iii. If you are de-certified, have your compliance proof expire or are threatened with de-certification, you shall notify EnvisionWare in writing within ten (10) days of such de-certification or threat thereof.
B. EnvisionWare shall use commercially reasonable technical, organizational, and administrative EXHIBIT E, PROJECT PB22-093
data security measures designed to maintain the security and confidentiality of your Personal Information entered into the Software, but EnvisionWare is not liable for the confidentiality of any Personal Information in the event of unauthorized access, theft or use of such Personal Information, either by you, your users, or by third parties who access such Personal Information through your systems or unauthorized use of your login credentials, other than to the extent due to the negligence of EnvisionWare or its representatives, agents, or contractors, in breach of EnvisionWare’s obligations under this Agreement.
C. EnvisionWare acknowledges that you may be required to periodically demonstrate to third parties your compliance and that of your applicable vendors with the PCI-DSS standards (Payment Card Industry Data Security Standard) of all the system components used to process, store or transmit “PCI cardholder data” (as that term is defined by PCI-DSS), and any other component that resides on the same network segment that those system components, hereafter known as “System Components in Scope.” Some of those system components and/or processes have been outsourced to EnvisionWare’s service providers (e.g., Verifone, Windcave, Chase E-xact, SecurePay, or the like) (“Service Providers”). Those portions of the system hardware and software developed by EnvisionWare are out of scope for PCI compliance since no PCI cardholder data passes through any EnvisionWare-developed component. Accordingly, EnvisionWare is not required to be PCI compliant. All System Components in Scope are provided by Service Providers.
Service Providers will achieve and maintain PCI DSS compliance against the current version of PCI DSS published on the PCI SSC (PCI Security Standards Council) website. EnvisionWare’s Service Providers with System Components in Scope have represented to EnvisionWare that they are compliant. As evidence of compliance, Service Providers will provide, when requested, a current attestation of compliance (“AOC”) signed by a PCI QSA (Qualified Security Assessor). AOCs are available for download from EnvisionWare's Customer Center on EnvisionWare’s website at support.envisionware.com. Service Providers have represented to EnvisionWare that they will create and maintain reasonably detailed, complete and accurate documentation describing the systems, processes, network segments, security controls, and dataflow used to receive, transmit, store and secure Customer’s PCI cardholder data. Such documentation will conform to the most current version of PCI DSS. Service Providers have represented to EnvisionWare that they will, upon written request by you, make such documentation and the individuals responsible for implementing, maintaining and monitoring those system components and processes available to: a) QSAs, forensic investigators, consultants or attorneys retained by you to facilitate audit and review of your PCI-DSS compliance and b) your IT Audit Staff.
EnvisionWare maintains protective coverage for PCI breach protection in the United States in the amount of $100,000.00 per breach incident (not per individual affected), which will cover the costs of responding to a breach or a suspected breach caused by the eCommerce system.
D. The obligations of the parties under this Section 5 shall survive any expiration or termination of this EULA.
6. Data:
A. CUSTOMER DATA. In connection with the Software and any related hardware or services provided by EnvisionWare, EnvisionWare may collect and maintain data and information provided by you, your patrons and users (collectively, “Customer Data”). As between EnvisionWare and you, all Customer Data shall be and remain owned by you and be your property. EnvisionWare shall maintain the aspects of all Customer Data that identify an individual as confidential. All third parties authorized by EnvisionWare which may have access to the Customer Data shall be under obligations of confidentiality to maintain the Customer Data as confidential.
EXHIBIT E, PROJECT PB22-093
B. USE OF CUSTOMER DATA. EnvisionWare shall have the right to use Customer Data in connection with EnvisionWare’s business, provided that such data shall be Anonymized or aggregated such that Personal Information has been de-identified so that one could not link anonymized information back to a specific individual (“Anonymized Data”). “Anonymize” means to either (1) irreversibly process Personal Information in such a way that the data can no longer be attributed to a specific individual, or (2) to process such information in such a way that the data can no longer be attributed to a specific individual without the use of additional information, and where such additional information is kept separate and under adequate security to prevent unauthorized re-identification of a specific individual. All such Anonymized Data shall be the sole property of EnvisionWare. EnvisionWare may use, disseminate, share, or transfer the Anonymized Data or any portion thereof in any way EnvisionWare chooses.
C. ENVISIONWARE DATA. EnvisionWare may also collect data and information in connection with the service that EnvisionWare provides generally (but not including Customer Data) through its services (“EnvisionWare Data”). You acknowledge and consent that the Software may communicate (e.g., via an outbound or inbound call using SSL) with EnvisionWare’s servers (which may be hosted by a third-party service provider) and support personnel, or vice versa, to communicate diagnostic, event logs, support, licensing, compliance, and other information (which is included in the definition of EnvisionWare Data). Some communication may be done automatically by the Software without your needing to be involved, other communication may be at your initiation (e.g., uploading logs) or initiated by EnvisionWare. All such EnvisionWare Data shall be the sole property of EnvisionWare.
7. Confidential Information: Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any software, documentation or technical information provided by EnvisionWare (or its agents), performance information relating to the Software, and the terms of this Agreement shall be deemed Confidential Information of EnvisionWare without any marking or further designation except as such disclosure is required by FOIA requirements. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (d) is independently developed by employees of the Receiving Party who had no access to such information; or (e) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law. The obligations under this Section 7 shall, with respect to Confidential Information, continue for a period of two (2) years after disclosure and, with respect to any information considered by and treated as a trade secret by the Disclosing Party, continue until the trade secret status has been lost.
8. Indemnification:
A. Infringement. Subject to your compliance with the terms of this EULA, EnvisionWare shall indemnify and hold harmless you and your officers, directors, employees and agents from and against all EXHIBIT E, PROJECT PB22-093
third party actions, suits, proceedings, claims, losses, liabilities, damages, and expenses (including attorneys’ and experts’ fees and sums reasonably expended in investigation and settlement of litigation, pending or threatened), to the extent such claim alleges that the Software (in each case as provided by EnvisionWare) infringes any copyright, U.S. patent right, trade secret right, or other intellectual property right provided, however, that you must comply with the following terms: EnvisionWare must have received from you: (i) prompt written notice of such claim (but in any event notice in sufficient time for EnvisionWare to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation by you. In the event that the Software is, or in EnvisionWare’s sole opinion is likely to be, enjoined or subject to a claim due to the type of infringement described in this Section 8, EnvisionWare, at its option and expense, may (a) replace the Software with functionally equivalent non-infringing Software or (b) obtain a license for your continued use of the Software, or, if the foregoing alternatives are not reasonably available to EnvisionWare (c) terminate this EULA and refund a pro rata amount, as determined by EnvisionWare, of the purchase price of the Software and Hardware. Notwithstanding the above, EnvisionWare shall have no liability for any infringement claim which: (i) pertains to any Software that has been altered or modified without EnvisionWare’s prior written approval; (ii) is based on use of the Software in conjunction with any item not provided by EnvisionWare, unless such use is shown to constitute the infringement when not used in conjunction with the item not provided by EnvisionWare; (iii) pertains to any unauthorized use of the Software; (iv) pertains to an unsupported release of the Software; or, (v) pertains to any Open Source Software or other third party code provided with the Software. THIS SECTION 8 SETS FORTH ENVISIONWARE’S SOLE LIABILITY AND YOUR
SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
B. EnvisionWare shall indemnify, defend and hold you harmless from any losses (including, but not limited to, damage awards, reasonable attorneys’ fees and costs, cost of notification, remediation, and penalties) you incur due to any third party claim or action directly resulting from any Data Breach of your (or your patrons’) Personal Information to the extent that such losses are due to the direct act or omission of EnvisionWare or its representatives, agents, or contractors. This Section 8B shall apply only for so long as you are under a written annual support agreement with EnvisionWare (for which you have fully paid) for the Software and applies only to the Software covered by such support agreement.
Furthermore, if you allow such support agreement to expire and subsequently purchase a support agreement, the obligations under Section 8B shall not apply to any third party claims arising from or during the period for which no support agreement was active.
9. Limitation of Liability: SOME STATES AND COUNTRIES, INCLUDING MEMBER
COUNTRIES OF THE EUROPEAN ECONOMIC AREA, DO NOT ALLOW THE LIMITATION OR
EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE LIMITATION OR EXCLUSION BELOW MAY NOT APPLY TO YOU. TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY
REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL
ENVISIONWARE OR ITS LICENSORS BE LIABLE TO YOU FOR ANY LOSS OF USE, LOST
DATA, FAILURE OF SECURITY MECHANISMS (OTHER THAN THOSE CONTAINED IN THE
SOFTWARE), INTERRUPTION OF BUSINESS OR ANY SPECIAL, CONSEQUENTIAL,
INDIRECT, PUNITIVE, EXEMPLARY OR SIMILAR DAMAGES, INCLUDING ANY LOST
PROFITS ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR
HARDWARE, EVEN IF ENVISIONWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EXHIBIT E, PROJECT PB22-093
IN NO CASE SHALL ENVISIONWARE’S OR ITS LICENSORS’ TOTAL LIABILITY (A) FOR
ANY SOFTWARE AND HARDWARE PRODUCTS COVERED UNDER THIS EULA, EXCEED TWO (2) TIMES THE PURCHASE PRICE FOR THE SOFTWARE AND HARDWARE OR (B) FOR ANY SERVICES, EXCEED TWO (2) TIMES THE FEES PAID BY YOU FOR THE SERVICES (EXCLUDING MAINTENANCE AND SUPPORT SERVICES) WHICH DIRECTLY CAUSED THE DAMAGES ALLEGED.
The disclaimers and limitations set forth above in this Section 9 will apply regardless of whether you accept the Software or Hardware or Professional Services. The parties agree that the limitations specified in this Section 9 will survive any expiration or termination of this EULA and apply even if any limited remedy specified in this EULA is found to have failed of its essential purpose.
10. U.S. Government Restricted Rights: RESTRICTED RIGHTS LEGEND. All EnvisionWare Software and documentation are commercial in nature. The Software and documentation are “Commercial Items”, as that term is defined in 48 C.F.R. section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are defined in 48 C.F.R. section 252.227-7014(a)(5) and 48 C.F.R. section 252.227-7014(a)(1), and used in 48 C.F.R. section 12.212 and 48 C.F.R. section 227.7202, as applicable. Consistent with 48 C.F.R. section
12.212, 48 C.F.R. section 252.227-7015, 48 C.F.R. section 27.7202 through 227.7202-4, 48 C.F.R. section 52.227-14, and other relevant sections of the Code of Federal Regulations, as applicable.
EnvisionWare’s computer Software and software documentation are licensed to United States Government end users with only those rights as granted to all other end users, according to the terms and conditions contained in this EULA. The manufacturer is EnvisionWare, Inc., 1960 Satellite Blvd., Suite 4100, Duluth, GA 30097-4127 USA.
11. Export Compliance: You acknowledge that the Software is subject to export restrictions by the United States government and import restrictions by certain foreign governments. You shall not, and shall not allow any third-party hired or under contract by you, to, remove or export from the United States or allow the export or re-export of any part of the Software or any direct product thereof: (i) into (or to a national or resident of) any embargoed or terrorist-supporting country; (ii) to anyone on the U.S.
Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (iv) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority.
12. Third-Party Code: The Software may contain or be provided with components subject to the terms and conditions of "open source" or freeware software licenses ("Open-Source Software"). Licenses for open source are identified in Section
1. To the extent required by the license that accompanies the Open-Source Software, the terms of such license will apply in lieu of the terms of this EULA with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering.
13. Professional Services: Upon request and agreement between the parties, EnvisionWare may provide consulting, training, installation, development, customization, report creation or other services (“Professional Services”). You may order Professional Services under a Statement of Work (“SOW”) describing the work to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information. Each SOW must be signed by both parties before EnvisionWare shall commence work under such SOW. If the parties do not execute a separate SOW, the EXHIBIT E, PROJECT PB22-093
Services shall be provided as stated on the invoice. You will reimburse EnvisionWare for reasonable travel and lodging expenses as incurred. EnvisionWare shall be deemed the sole owner of any work product created and deliverables (including any documentation, code, Software, training materials or other work product) (collectively referred to as the “Deliverables”) delivered pursuant to the Professional Services, whether created solely by EnvisionWare or jointly with you or your contractors.
Subject to your full payment of any and all fees pursuant to the applicable SOW, EnvisionWare grants to you the limited, nontransferable right to use any Deliverables delivered as part of the Professional Services solely in connection with your permitted use of the Software, subject to all the same terms and conditions as apply to your Software license (including the restrictions set forth in Section 1B), and subject to any additional terms and conditions provided with the Deliverables. EnvisionWare provides the Professional Services Warranty as stated in Section 4D above.
14. General: This EULA is the entire agreement between you and EnvisionWare relating to the license and use of the Software and Hardware, and relating to the Professional Services. This EULA supersedes all prior EnvisionWare end user license agreements for the Software and for any Professional Services.
EnvisionWare may terminate this EULA upon your breach of any term contained herein. Upon termination, you shall cease use of, uninstall or render inoperable, and delete destroy all copies of the Software. The disclaimers of warranties and damages and limitations on liability shall survive termination. No provision of any purchase order or other business form employed by you will supersede the terms and conditions of this EULA, and any such document relating to this EULA shall be for administrative purposes only and shall have no legal effect. The parties to this EULA are independent contractors with respect to one another. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent. This document may not be changed. In the event of any conflict with local law, the sole method for changes to EULA language are the incorporation of overriding text in an Agreement or a separate EULA Amendment.
15. Governing Law; Jurisdiction and Venue: This Agreement shall be governed by the laws of the State of Georgia and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act, as currently enacted by any jurisdiction or as may be codified or amended from time to time by any jurisdiction.
16. Software Escrow: At your request, EnvisionWare is willing to set up and maintain the Software with EnvisionWare’s independent U.S. escrow agent and make ongoing escrow deposits for significant updates.
You would be responsible for additional fees for this service. Please contact EnvisionWare to for more information and pricing.
17. Insurance: EnvisionWare will, upon your request, provide you with a certificate of insurance showing that it carries or has in force each of the following types of insurance: general liability-- $1,000,000 per occurrence and $1,000,000 general aggregate; professional liability--$1,000,000 per occurrence or claim and $1,000,000 aggregate; and cyber (aka electronic e/o)--$1,000,000 per occurrence or claim and $1,000,000 aggregate. If EnvisionWare does on-site installation or training, it will carry workers' compensation insurance that provides statutorily required workers' compensation coverage and employers' liability insurance with limits of $500,000 per accident, $500,000 disease - each employee,
$500,000 disease - policy limit. EnvisionWare's insurance is primary. EnvisionWare is responsible for the payment of any deductibles or self-insured retentions. You will receive thirty (30) days' notice of cancellation.
EXHIBIT E, PROJECT PB22-093
18. Purchase in Australia: If you purchase Software, Hardware, or services from EnvisionWare Pty Ltd or its partners, the laws of South Australia, Australia govern all warranty and service claims.
EnvisionWare Pty Ltd is authorized to convey and effect all of the rights expressed in this EULA for its direct and indirect customers.
19. Contact Us: Should you have any questions concerning this EULA, or if you desire to contact EnvisionWare for any reason, please email [email protected] or write to: EnvisionWare, Inc., 1960 Satellite Blvd., Suite 4100, Duluth, GA 30097-4127 USA, unless you purchase from an Asia Pacific country in which case, please write EnvisionWare Pty Ltd, 258 Payneham Road, Payneham, SA 5070 Australia. Revised Jan 2022 © 2002-2022 EnvisionWare, Inc. All Rights Reserved.
PASS THROUGH EULAs FOR PCI-RELATED PRODUCTS
The Verifone EULA applies to customers located in the United States that use EnvisionWare Products supporting credit card payment. The Windcave EULA is appliable to customers that use EnvisionWare Products supporting credit card payment located in Australia, Canada, Ireland, New Zealand and other countries where Windcave terminal and web services are applicable using Windcave gateways and/or terminals. EnvisionWare has no ability to modify these EULAs that are provided by Verifone and Windcave respectively.
VERIFONE PAYMENT GATEWAY TERMS OF USE
Solely for the purposes of the following Verifone Terms of Use, the following terms shall have their associated meanings. “Agreement” means the Verifone Terms of Use. “BPP” means Verifone’s Buyer Protection Program. “Covered Territory” means your location(s). “Customer Agreement” means the EULA. “Payment Gateway” means Verifone’s transaction gateway portal which provides transaction routing, online reporting and other tools made available by the portal. “Point Solution” and “Rental Devices” mean the Point Solution hardware and Software manufactured or provided by Verifone and offered by EnvisionWare under the EULA. “Reseller” means EnvisionWare. “Software” means the software accompanying the Point Solutions Rental Devices. “Verifone” means VeriFone, Inc.
VERIFONE PASS THROUGH TERMS OF USE
1. The following are Verifone’s Pass Through Terms of Use for its Point Solution Rental Device hardware and Software.
2. Each Verifone payment device used with the Point Solution is subject to an initial service term of 36 months (the “Initial Service Term”). Subject to the terms of the Customer Agreement, with respect to a particular Verifone payment device, Verifone shall provide the Point Solution to customer for a service term commencing (A) for Rental Devices (or any other payment devices shipped directly by Verifone), on the date such devices are shipped by Verifone, or (B) for any other payment devices, on the date on which such device is activated on the Payment Gateway, and in any case ending on the earliest of (1) the date on which Reseller removes such device from the Payment Gateway, (2) upon Verifone’s ceasing to provide the Point Solution for a payment device, which Verifone shall have the right to do on thirty days’ notice to customer following the Initial Service Term for such device, and (3) termination of customer’s right to use the Point Solution by Reseller due to breach by customer of the Customer Agreement (the “Service Term”). In addition, in the event Verifone’s separate agreement with Reseller terminates or Verifone ceases to offer the Point Solution to its customers generally, Verifone reserves the right to terminate the Service Terms for any or all Verifone payment devices. Upon the termination of EXHIBIT E, PROJECT PB22-093
the Service Term for a particular Verifone payment device, customer shall cease using the Point Solution for such payment device. In the event that a customer desires to end the Service Term for a payment device, the customer must request that Reseller remove the applicable device from the Payment Gateway on its behalf; Verifone will not be responsible for removing a payment device from the Payment Gateway provided that, notwithstanding customer’s earlier request, the Service Term will end on the day Reseller actually removes the device from the Payment Gateway.
3. Subject to the terms of this Agreement and customer’s payment of the applicable fees, Verifone hereby grants to customer a limited, non-exclusive, non-transferable, non-sub-licensable right and license, in the Covered Territory during the Service Term for each payment device, to access and use the Point Solution subscribed to hereunder solely for customer’s internal business purposes.
Notwithstanding the foregoing, Reseller will be responsible for managing and monitoring customer’s payment devices on customer’s behalf, including with respect to the installation of payment applications and key loading, and customer will not be able to directly manage or monitor its payment devices via the Payment Gateway portal. Verifone may modify the Point Solution from time to time in its reasonable discretion, provided that such modifications shall not materially diminish the functionality thereof. If Reseller fails to pay Verifone for services rendered in accordance with its agreement with Verifone, Verifone reserves the right to withhold customer’s access to the Point Solution until such fees are paid in full, and Verifone shall not have any liability to customer for any amounts paid to Reseller and not received by Verifone for such services.
4. Customer shall have no right to market, distribute, sell, assign, pledge, sublicense, lease, deliver or otherwise transfer the Point Solution, or any component thereof, including without limitation the Software, to any third party. Customer shall not reverse engineer, decompile, disassemble, translate, modify, alter or create any derivative works based upon the Software, or determine or attempt to determine any source code, algorithms, methods or techniques embodied in the Software, without the prior express written consent of Verifone. Customer shall not remove from the Rental Devices or the Software, or alter, any of trademarks, trade names, logos, patent or copyright notices, or other notices or markings, or add any other notices or markings to the Rental Devices or the Software, without the prior express written consent of Verifone.
5. Customer acknowledges that the Point Solution (including any related documentation) and any intellectual property rights relating to or residing therein (including any patents, copyrights, trade secrets, trademarks, trade names or mask work rights), including the proprietary electronics, software and technical information of Verifone therein, are proprietary products of Verifone and that ownership of such shall remain with and inure to Verifone. Except for the license rights set forth in this clause 5, customer shall have no right, title or interest therein.
6. Customer grants VeriFone a limited, non-exclusive and irrevocable license during and after the term of this Agreement to follow customer’s activity inside of the Point Solution components and to use, share, and disseminate data from customer’s activity (including its transactions) on an aggregate and anonymous basis only (such data, “Derived Data”), including for purposes of data analytics and optimizing or otherwise enhancing its products and services. VeriFone will comply with all applicable laws with respect to any use, sharing and dissemination of Derived Data. This clause 6 shall survive any expiration or termination of this Agreement.
7. VERIFONE DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH
RESPECT TO THE POINT SOLUTION, INCLUDING WITHOUT LIMITATION IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. VERIFONE DOES NOT WARRANT THAT
THE POINT SOLUTION, OR ANY COMPONENT THEREOF, WILL MEET THE REQUIREMENTS EXHIBIT E, PROJECT PB22-093
OF CUSTOMER OR THAT THE OPERATION OF THE POINT SOLUTION, OR ANY COMPONENT THEREOF, WILL BE UNINTERRUPTED OR ENTIRELY ERROR FREE.
CUSTOMER ACKNOWLEDGES THAT UNDER NO CIRCUMSTANCES DOES VERIFONE REPRESENT OR WARRANT THAT ALL ERRORS IN ANY SOFTWARE CAN BE REMEDIED.
NO ADVICE OR INFORMATION OBTAINED BY CUSTOMER FROM VERIFONE OR FROM
ANY OTHER THIRD PARTY ABOUT THE POINT SOLUTION SHALL CREATE ANY WARRANTY.
8. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE CUSTOMER AGREEMENT: EXCEPT TO THE EXTENT PROHIBITED BY LAW:
(A) VERIFONE SHALL HAVE NO LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR
SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF BUSINESS, LOSS OF PROFITS
OR REVENUE, GOODWILL OR SAVINGS, DOWNTIME, OR DAMAGE TO, LOSS OF OR
REPLACEMENT OF DATA OR TRANSACTIONS, COST OF PROCUREMENT OF SUBSTITUTE
SERVICES) RELATING IN ANY MANNER TO THE POINT SOLUTION (WHETHER ARISING
FROM CLAIMS BASED IN WARRANTY, CONTRACT, TORT OR OTHERWISE), EVEN IF VERIFONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGE; (B) IN ANY CASE, VERIFONE’S ENTIRE LIABILITY RELATING IN ANY MANNER TO THIS
AGREEMENT OR THE POINT SOLUTION, REGARDLESS OF THE FORM OR NATURE OF THE
CLAIM, SHALL BE LIMITED IN THE AGGREGATE TO THE FEES ACTUALLY RECEIVED BY
VERIFONE FROM RESELLER FOR CUSTOMER FOR THE POINT SOLUTION UNDER THE CUSTOMER AGREEMENT DURING THE SIX (6) MONTHS PRIOR TO THE CLAIM ARISING;
AND (C) VERIFONE SHALL NOT BE LIABLE FOR ANY CLAIMS OF THIRD PARTIES RELATING TO THE POINT SOLUTION. THE LIMITATIONS ON VERIFONE’S LIABILITY SET FORTH IN CLAUSES “(B)” AND “(C)” OF THIS SECTION SHALL NOT APPLY TO LIABILITY
FOR DEATH, PERSONAL INJURY OF A PHYSICAL NATURE OR DAMAGE TO TANGIBLE PROPERTY CAUSED BY VERIFONE’S NEGLIGENCE OR INTENTIONAL MISCONDUCT. THE LIMITATIONS CONTAINED IN CLAUSE 7 ABOVE AND THIS CLAUSE 8 ARE A FUNDAMENTAL PART OF THE BASIS OF VERIFONE’S BARGAIN HEREUNDER, AND
VERIFONE WOULD NOT PROVIDE THE POINT SOLUTION TO CUSTOMER ABSENT SUCH
LIMITATIONS
9. Customer shall comply with all applicable laws, rules, and regulations in connection with this Agreement, including, but not limited to, export control laws and anti-corruption and anti-bribery laws, rules, and regulations. Customer agrees that if Verifone reasonably believes that customer is in breach of this clause 9, that alone shall be sufficient grounds for further action by Verifone, including, without limitation, cancellation of any orders or denial of future business, without any liability or obligation to customer. In addition, customer hereby indemnifies Verifone and its affiliates, directors, officers and employees for all costs, expenses, damages, claims, charges, penalties, fines and other losses that arise in connection with any breach by customer or customer subsidiaries, owners, officers, directors, employees, partners, subcontractors, agents and representatives of the terms and conditions contained in this clause 9.
10. VERIFONE SHALL BE A THIRD-PARTY BENEFICIARY OF THIS AGREEMENT, WITH THE
RIGHT TO ENFORCE THE TERMS HEREOF AGAINST CUSTOMER WITH RESPECT TO THE POINT SOLUTION.
11. In the case of any customer agreements that include Rental Devices:
EXHIBIT E, PROJECT PB22-093
A. Verifone Property. The Rental Devices shall remain the property of Verifone. Customer shall have no right, title or interest therein except as a lessee under this Agreement. Customer shall keep all Rental Devices free and clear from all liens, including any direct or indirect charge, encumbrance, lien, security interest, legal process or claim against the Rental Devices. Customer may not assign, hypothecate, sublet, sell, transfer, permit the sale of or part with possession of all or any of the Rental Devices or interest in the Customer Agreement, without Verifone’s prior written consent. If customer fails to pay any undisputed fees when due, and fails to cure such failure within ten (10) business days of written notice thereof, Verifone may, at any time thereafter enter, with or without legal process, any premises where any Rental Device may be, and repossess and remove such Rental Device. Customer hereby waives any claim of trespass or right of action for damages by reason of such entry and repossession. In addition, customer shall pay to Verifone any actual additional expenses incurred by Verifone in collection efforts.
B. Upgrades. Customer may, commencing on the one year anniversary of the start of the Service Term for a Rental Device, upgrade to a different Rental Device (in which event customer may be subject to an increase in fees based on the new Rental Device subscription fee). For such upgrades, customer shall be required to commit to a new Initial Service Term for such Rental Device and shall be required to return the old Rental Device in accordance with clause (d) below.
C. Loss and Damage. Subject to Verifone’s obligation to provide the Services, customer assumes and shall bear the entire risk of loss or damage to the Rental Devices from any use whatsoever from the date of delivery of the Rental Devices to the customer site, until such Rental Devices are returned to Verifone. No loss or damage shall relieve customer from the obligation to make payments hereunder or to comply with any other obligation under the Customer Agreement. In the event of a loss of a Rental Device (but not damage), customer shall immediately notify Reseller thereof. With respect to any lost Rental Device, customer shall be obligated to pay Reseller the Non-Return Fee applicable to such Rental Device. Subject to Verifone’s receipt of such Non-Return Fee from Reseller, Verifone shall ship customer a new or refurbished replacement Rental Device. At all times payments for the Point Solution for such Rental Device shall continue in effect.
D. Return at End of Service Term. At the end of the Service Term for a Rental Device, customer shall return such Rental Device to Reseller or Verifone, as directed by Reseller. When returning a Rental Device to Verifone a Material Return Authorization number is required. If a Rental Device is not returned to Verifone within thirty (30) days of the end of its Service Term, customer shall be obligated to pay Reseller the Non-Return Fee for such Rental Device. If, upon return of the Rental Device, Verifone determines that the Rental Device requires repair that is not covered by the BPP or Repair Services (e.g., “Out of Scope” or “Limitations”), customer shall be required to pay Reseller for such services at Verifone’s standard fees.
EXHIBIT E, PROJECT PB22-093
WINDCAVE, INC. END USER LICENSE AGREEMENT (EULA)
Windcave was formerly known as Payment Express (PX).
This WINDCAVE END USER LICENSE AGREEMENT (this “Agreement”) is made as of the Effective Date (the date Customer signs this Agreement), by and between WINDCAVE INC., a California corporation (“PX”), and the party set forth on the signature page hereto (“Customer”).
1. Definitions and Interpretation
1.1 Definitions: In this Agreement, unless the context indicates otherwise:
“Acquirer “ means a bank or any financial institution or a card issuer of financial or non-financial transactions which receives and transmits Transactions via Windcave; “Agreement “ means this Agreement, and any attachments that may be agreed between the parties, as each may be amended in writing from time to time;
“Business Day “ means any day of the week except Saturday, Sunday or a day on which banks are authorized or required to be closed in California;
“Chargeback “ means the procedure by which a sales record or other indicia of a card transaction (or disputed portion thereof) is denied or returned to Bank or the card issuer after it was entered into the appropriate settlement network for payment, in accordance with the rules of Visa, MasterCard or a similar card association (“Rules”), for failing to comply with the Rules, including, without limitation by reason of cardholder disputes, the liability for which is Customer’s responsibility and Customer agrees to pay. “Confidential Information “ means, in relation to either party, any information:
a) relating to the terms of this Agreement;
b) relating directly or indirectly to research or development by, accounting for, or the marketing of, the business of that party or its suppliers or customers; c) disclosed by that party to the other party on the express basis that such information is confidential; or
d) which might reasonably be expected by the other party to be confidential in nature; “Customer “ means the customer specified on the first page of this Agreement and where applicable includes its employees, contractors and agents.
“Documentation “ means any user, training or system manuals for Windcave (whether in printed or electronic form) which describes and provides guidance on the use of Windcave (or any aspect of Windcave);
“Goods “ means electronic devices produced by PX or sold by PX to Customer, Reseller, or a third party;
“Intellectual Property “ means registered and unregistered trade marks (including logos and trade files), domain names, copyright, patents, petty patents, utility models, registered and unregistered designs, circuit layouts, rights in computer software, databases and lists, Confidential Information, software (whether in object code or source code), and all other rights anywhere in the world resulting from intellectual activity;
“Windcave “ means the Windcave solution provided by PX for the transmission of data relating to Windcave Supported Transactions between a Customer and an Acquirer, incorporating the Software and including access (via the internet) to the Windcave Host; “Windcave Host “ means the PX host server known as Windcave Host to which Customer may be connected using the Software and which is in turn linked to an Acquirer to enable Windcave Supported Transactions to be processed in real time;
EXHIBIT E, PROJECT PB22-093
“Windcave Supported Transactions “ means transactions from Customers:
a) accepting payment for goods and services by means of credit card, debit card, prepaid card, gift card or any other means of payment which PX agrees to support through Windcave from time to time;
b) accepting loyalty cards, rewards cards, points cards, discount cards or club cards; or c) providing services in relation to the sale and use of any of the cards referred to in paragraphs (a) and (b) above including the issue of such cards and the crediting or debiting of value to such cards;
“Payment Manager “ means Windcave Merchant Portal which Customer is able to access by logging onto the PX Website with an assigned username and password; “PCI Standards “ means the Payment Card Industry standards, requirements and guidelines issued by the Payment Card Industry Data Security Council from time to time including the Payment Card Industry Data Security Standard PIN Entry Device requirements and guidelines, and the Payment Application Data Security Standard;
“Permitted Use “ means the transmission to, and receipt from, an Acquirer of data relating to Windcave Supported Transactions and expressly excludes, without limitation, use for the processing of transactions of, or for the benefit of, any person other than Customer; “Reseller “ means the party with whom Customer has entered into an agreement for the purchase of a license to Windcave;
“Reseller Agreement “ means the agreement between the Customer and the Reseller; “PX “ means Windcave Inc., a corporation duly formed in California with offices in Los Angeles, California.
PX Logo means the PX logo supplied (in electronic format) by PX to Customer (as may be updated from time to time by PX);
“PX Website “ means the website maintained by PX and accessible by Customer for viewing transactions, data entry, refunding, report generating and other features related to Transactions; “Software “ means the software and other related PX products which:
a) form part of Windcave; and
b) is owned or licensed by or developed by, or on behalf of, PX and supplied to Customer, including all upgrades, updates, alterations and modifications and other changes to such software by or on behalf of PX from time to time, but excluding any third party software and firmware forming part of, or supplied with, the Windcave solution; “Transaction “ means a message pair consisting of a message relating to a Windcave Supported Transaction transmitted by Customer to an Acquirer through Windcave and a response to that message from the Acquirer to Customer through Windcave; “Tokenized Data “ means data for which PX has substituted a sensitive data element with a non- sensitive equivalent that has no extrinsic or exploitable meaning or value.
1.2 Interpretation: In this Agreement, unless the context indicates otherwise:
a) the singular includes the plural and vice versa;
b) clause and other headings are for ease of reference only and will not affect this Agreement's interpretation;
c) the term “includes “ or “including “ (or any similar expression) is deemed to be followed by the words without limitation;
d) references to a “person “ include an individual, company, corporation, partnership, firm, joint EXHIBIT E, PROJECT PB22-093
venture, association, trust, unincorporated body of persons, governmental or other regulatory body, authority or entity, in each case whether or not having a separate legal identity; e) any obligation not to do anything includes an obligation not to suffer, permit or cause that thing to be done; and
f) in the event of any inconsistency between the terms this Agreement and the terms of the Reseller Agreement, the terms of this Agreement will control.
2. Term
2.1 Term: This Agreement commences on the Effective Date and will continue until terminated under Clause 9 (the “Term”).
3. Customer Responsibilities
Customer represents and agrees that it:
3.1 Power and Authority: that it has full power and authority necessary to validly enter into and perform all its obligations under this Agreement
3.2 Requirements: to comply with the other party's reasonable security, confidentiality and operational requirements of which it has been given reasonable notice
3.3 Suitability: has made, and will continue to make, its own assessment of the suitability, adequacy, compatibility and appropriateness of Windcave for its purposes;
3.4 Comply with Instructions: will comply with PX’s restrictions, instructions and Documentation in relation to the use of Windcave, including those set out in this Agreement;
3.5 Use by Others: will ensure that only authorized persons use Windcave and that Windcave is used only for the Permitted Use and as expressly authorized under this Agreement;
3.6 Responsibility for Use: will accept all responsibility for the reliance on and use of Windcave by Customer and its employees, contractors and agents;
3.7 Obtain Equipment Etc.: will obtain and maintain all equipment, software and services needed to enable it to receive and use Windcave;
3.8 Accurate Customer Information: warrants that all information provided by Customer to PX in the Application Form is accurate and correct, and that Customer will notify PX in writing if such information changes or ceases to be accurate in any way;
3.9 Provide Sufficient Information: will ensure that sufficient information is given to PX to enable PX to comply with its obligations under this Agreement and that such information is timely, complete and accurate;
3.10 Personal Information: acknowledges that any personal information concerning Customer or its personnel which is provided to PX by or on behalf of Customer may be:
a) used by PX for the purpose of providing Windcave, the Support Services and any other services to Customer; and
b) disclosed by PX to its affiliates and other services providers to enable PX to provide Windcave, the Support Services and any other services to Customer;
3.11 Notify of Third Party Infringement: will immediately notify PX upon becoming aware of any third party infringing PX's Intellectual Property rights in any manner;
3.12 Responsible for Connecting to Windcave Host: is responsible for all charges and costs associated with connecting to the Windcave Host to operate Windcave. PX will provide Customer with reasonable technical information and Software necessary to enable Customer to connect to the Windcave Host; and
EXHIBIT E, PROJECT PB22-093
3.13 Comply with Law Generally: will comply with all relevant laws in its use of Windcave and carrying out its obligations under this Agreement.
3.14 Requisite Review of Payline Portal: will review Customer’s Payline portal, established by PX, with due care on a daily basis for transaction errors. If an error is discovered by Customer, Customer will notify PX in writing within three (3) Business Days of the date such error occurs; provided that PX will have no liability or obligations of any kind with respect to errors that are not reported to PX within such three (3) Business Day period. In addition, Customer shall be required to review with due care its bank settlement files on a daily basis to ensure deposits occur without error. If an error is discovered by Customer in the course of such review, Customer will notify PX in writing within three (3) Business Days of the date of such error occurring; provided that PX will have no liability or obligations of any kind with respect to errors that are not reported to PX within such three (3) Business Day period. PX’s liability under this Section 3.14 (Requisite Review of Payline Portal) of the Agreement is governed by, and fully subject to, the terms of Section 9 of this Agreement.
3.15 Improperly Deposited Funds: will return funds that PX deposits in Customer’s bank account(s) that do not rightfully belong to Customer (“Improperly Deposited Funds”) without offset or delay.
Customer will return all Improperly Deposited Funds to PX within five (5) calendar days of a written request to do so by PX. If Customer fails to comply with the terms of this Section, PX may immediately suspend services to Customer until Customer returns the Improperly Deposited Funds.
Customer will be liable to PX for the Improperly Deposited Funds, and all costs (including legal costs on an attorney-client basis) incurred by PX in recovering the Improperly Deposited Funds.
3.16 Return of Old Goods: For Goods that Customer ceases using for the Permitted Use (“Unused Goods”), Customer will return such Unused Goods to PX within 30 calendar days. Unused Goods include, but are not limited to, Goods Customer has ceased using due to the Goods becoming obsolete, Goods that no longer operate, and Goods that are replaced per warranty. Customer will pay all shipping fees and costs associated with returning the Unused Goods to PX. Alternatively, instead of returning Unused Goods to PX, Customer may provide PX a secure destruction certificate evidencing that the Unused Goods were destroyed in compliance with the Security Standards within the same 30 calendar day period.
4. Disclaimer of Warranties
4.1 Limitations on Warranties: To the fullest extent permitted by law, except as expressly set out in this Agreement, PX disclaims and excludes all warranties, conditions, terms, representations or undertakings, whether express, implied, statutory or otherwise, including any condition or warranty of merchantability or fitness for a particular purpose. PX does not warrant that:
a) Windcave, the Software or the Documentation will meet Customer's requirements; or b) Windcave, the Software and the Documentation will be uninterrupted or error free, or that all errors will be corrected.
Customer understands and acknowledges that an authorization obtained through Windcave only confirms the availability of the cardholder’s credit at the time of the authorization. It does not warrant that the person presenting the card is the rightful cardholder, nor is it an unconditional promise, guarantee or representation by Bank, processor or PX that a transaction is or will be deemed valid and not subject to dispute, debit or chargeback.
4.2 No Requirement to Decrypt Tokenized Data: PX will at no time be obligated to decrypt and transmit Tokenized Data to Customer or any third party.
EXHIBIT E, PROJECT PB22-093
5. Intellectual Property
All Intellectual Property rights in Windcave, the Software, the Documentation and any work or thing developed or created by or on behalf of PX under or in connection with this Agreement (such work or thing being Developed Works), are exclusively owned by PX (or PX's licensors or suppliers).
Customer acknowledges that there is no transfer of title, Intellectual Property rights or ownership of:
a) Windcave, the Software, the Documentation or any part thereof; or b) any Developed Works; to Customer under this Agreement and Customer will not dispute PX's (or PX's licensors or suppliers) ownership of the property referred to in this clause
5. 6. Indemnity
Customer shall indemnify PX (and at PX’s sole discretion, defend PX) at all times against any liability, loss, damage or cost (including attorney’s fees) suffered or incurred by PX and all actions, proceedings, claims or demands made against PX as a result of any negligent act or omission or any breach of this Agreement by Customer, its personnel or agents.
7. Liability
7.1 Remedy: Subject to clauses 7.2 and 7.3, Customer's sole and exclusive remedy for breach of any warranty or of any of PX's obligations under this Agreement is (at PX's option) the supply or re- supply of Windcave, the Goods, the Software, or the Documentation or the refund or waiver of Fees for the relevant part of Windcave the Goods, the Software, or the Documentation which is the subject matter of, or directly related to, the breach.
7.2 Limitation: In no event will PX's total liability to Customer under this Agreement for any reason exceed the amount of $1,000.
7.3 Exclusion: In no event will PX be liable to Customer whether in contract, tort (including negligence) or otherwise in respect of any:
a) punitive, incidental, indirect or consequential damages, damages for loss of profits, business interruption, loss of data, loss of goodwill, arising out of, or in connection with, this Agreement, in each case even if such party has been advised of the possibility of such damages;
b) loss, damage, cost or expense suffered or incurred by Customer, to the extent this results from any act or omission by Customer; or any event described in part B, clause 14 (Force Majeure).
8. Commercial Purpose
It is expressly acknowledged and agreed by Customer that Windcave, the Software and the Documentation are supplied to Customer for business and commercial purposes.
9. Termination
9.1 PX Termination Upon Notice: PX may terminate this Agreement without liability or obligation to Customer of any kind upon written notice to Customer if the Reseller Agreement expires or is terminated by Customer and/or Reseller for any reason.
9.2 PX Termination for Cause: PX may terminate this Agreement without liability or obligation to Customer of any kind at any time and with immediate effect by written notice to Customer:
a) if Customer breaches any of its obligations under this Agreement; or b) if Customer fails to pay any amounts due to Reseller pursuant to the Reseller Agreement; or c) goes into voluntary or involuntary bankruptcy or liquidation or has a receiver appointed.
9.3 Customer Termination: Customer may terminate this Agreement if PX breaches any of its EXHIBIT E, PROJECT PB22-093
obligations under this Agreement and fails to cure such breach within 10 Business Days after receipt of written notice of such breach.
9.4 Consequences: Termination of this Agreement will not affect the rights or obligations of the parties which have accrued prior to or accrue on termination or which by their nature are intended to survive termination (including clauses 3-7, 10, 13, and 14, together with those clauses which are incidental to, and required in order to give effect to, those clauses). Upon termination of this Agreement, Customer must immediately cease use of Windcave, the Software and the Documentation.
10. Confidentiality
10.1 Confidential Information: Each party will maintain as confidential at all times, and will not at any time, directly or indirectly:
a) disclose or permit to be disclosed to any person;
b) use for itself or to the detriment of the other party; any Confidential Information of the other party except as, and then only to the extent:
i) required by law;
ii) that the information is already or becomes public knowledge, otherwise than as a result of a breach, by the receiving party, of any provision of this Agreement; iii) that the information is disclosed to the receiving party, without restriction, by a third party and without any breach of confidentiality by the third party; iv) that the information is developed independently by the receiving party without reliance on any of the Confidential Information of the other party; v) authorized in writing by the other party; or
vi) reasonably required by this Agreement (and, without limiting the effect of this clause, a party may disclose Confidential Information of the other party only to those of its officers, employees or professional advisers on a "need to know" basis, as is reasonably required for the implementation of this Agreement).
10.2 PX’s Intellectual Property: Customer acknowledges and agrees that the computer programs, computer software, specifications, data, images, designs, codes, and configurations contained in or utilized by the equipment and PX's network are proprietary and confidential to PX and protected under United States copyright law. Customer shall not copy, modify, adopt, translate, merge, reverse engineer, decompile, or disassemble, the equipment or Software, or create any derivative works based on the equipment, PX network or Software. Without limiting the effect of clause 10.1, Customer will treat information about PX's Intellectual Property as Confidential Information of PX.
11. Force Majeure
11.1 Customer acknowledges that PX relies on third-party providers in the delivery of its services, including, but not limited to, wireless data network providers, cellular radio service provided by third parties that is available only when within the operating range of cellular systems, and cellular service is subject to transmissions limitations and dropped or interrupted transmissions. Cellular service may be temporarily refused, limited, interrupted, or curtailed because of government regulations or orders, atmospheric and/or topographical conditions, and cellular system modifications, repairs, and upgrades. Customer agrees that PX shall not be liable for, and to hold PX harmless for any losses, damages, or business interruptions sustained as a result of interruptions caused by its wireless data network providers or any other third-party provider.
11.2 Neither party (the “Affected Party”) shall be liable for any default or delay in the performance of its obligations under this Agreement if and to the extent such default or delay is EXHIBIT E, PROJECT PB22-093
caused, directly or indirectly, by
a) fire, flood, elements of nature or other acts of God b) any outbreak or escalation of hostilities, war, riots or civil disorders in any country; c) any act or omission of the other party or any government authority; d) any labor disputes (whether or not employees’ demands are reasonable or within the party’s power to satisfy); or
e) the nonperformance by a third party for any similar cause beyond the reasonable control of such party, including without limitation, failures or fluctuations in telecommunications or other equipment such as described in clause
11.3 In any such event, the Affected Party shall be excused from any further performance and observance of the obligations so affected only for as long as such circumstances prevail and such party continues to use commercially reasonable efforts to recommence performance or observance as soon as practicable, provided that:
a) Notice: whenever the Affected Party becomes aware that such a result has occurred or is likely to occur, the Affected Party will, as soon as practicable, notify the other party by written notice accordingly;
b) Continued Performance: each party will continue to use commercially reasonable efforts to perform its obligations as required under this Agreement; and c) No Deemed Acceptance of Extra Costs: neither party will be deemed to have accepted any liability to pay or share any extra costs which may be incurred by the other party in complying with this clause or otherwise resulting from such act, omission or failure; and d) Charges: this clause 11.3 will not apply in respect of Customer's obligation to pay any charges or Fees payable under this Agreement.
12. License
12.1 Grant of License: PX grants to Customer a limited, non-exclusive, non-transferable, non- assignable, revocable license to use Windcave, the Software and the Documentation for the Term of this Agreement solely for the Permitted Use. Any other use or dealings with Windcave, the Software or the Documentation without the prior written consent of PX will be a material breach of this Agreement. Except to the extent specifically authorized under this Agreement, Customer must not sub-license, transfer, assign, rent or sell any of Windcave, the Software or the Documentation or the right to use Windcave, the Software or the Documentation.
12.2 PX Warranty: PX warrants that PX has the right and authority to grant to Customer the license set out in clause 12.1, in accordance with the terms of this Agreement.
13. Terms of Use
13.1 Adequacy: Customer must satisfy itself as to the adequacy, appropriateness and compatibility of Windcave for its requirements. Without limiting the foregoing, Customer acknowledges that it has not relied on any statements or representations on the part of PX as to performance or functionality, verbal or otherwise, except as expressly recorded in this Agreement.
13.2 PX Logo: If Customer uses a capture method for credit or debit card processing using a system which is not hosted by PX, Customer agrees to display the PX Logo in a readily visible position on the user interface of Customer’s system where the credit or debit card data is captured. The PX Logo must not be altered or used for any other purpose without the prior written consent of PX.
13.3 Compliance: If Customer is not compliant with one or more of the Security Standards, Customer must not capture or store any credit or debit card number or expiry date locally on Customer's or a non- compliant third party’s system.
EXHIBIT E, PROJECT PB22-093
13.4 No Right to Copy, Alter or Modify: Customer may make a reasonable number of copies of the Software for backup and disaster recovery purposes only. Except for such back-up copies, Customer must not, and must not permit any other person to, copy, reproduce, translate, adapt, vary, repair or modify all or any part of Windcave, the Software or the Documentation by any means or in any form without PX's prior written consent.
13.5 Permitted Use: Customer may not:
a) use Windcave, the Software or the Documentation for any purpose other than the Permitted Use; or
b) use the Software independently of the other components of Windcave unless PX has given prior written consent to do so.
If this Agreement is terminated, Customer's right to use Windcave, the Sof tware and the Documentation will automatically terminate and Customer must immediately remove all copies of the Software from its system(s) and return Windcave, the Software and the Documentation to PX
13.6 Reverse Engineering: Customer must not, and must not permit any other person to, reverse assemble or decompile the whole or any part of the Software.
13.7 No Third Party Use: Except as expressly provided for in this Agreement, the Customer must not provide, or otherwise make available, Windcave, the Software or the Documentation or any component thereof in any form to any person (a “Third Party”) without the prior written consent of PX. If PX grants such consent, Customer must ensure that the Third Party complies with the provisions of clauses 5, 10, 12, and 13 (so far as those provisions relate to Customer) as if the Third Party were a party to this Agreement. Customer will be liable to PX for all acts or omissions of any Third Party in contravention of the provisions of clauses 5, 10, 12, and 13.
General
13.8 Entire Agreement: This Agreement including all schedules hereto records the entire arrangement between the parties relating to all matters dealt with in this Agreement and supersedes all previous arrangements, whether written, oral or both, relating to such matters.
13.9 Disputes: The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiation between executives who have authority to settle the controversy and who are at a higher level of management than the persons with direct responsibility for administration of this Agreement. Any party may give the other party written notice of any dispute not resolved in the normal course of business. Within 15 days after delivery of the notice, the receiving party shall submit to the other a written response. The notice and response shall include with reasonable particularity (a) a statement of each party’s position and a summary of arguments supporting that position, and (b) the name and title of the executive who will represent that party and of any other person who will accompany the executive. Within 30 days after delivery of the notice, the executives of both parties shall meet at a mutually acceptable time and place. If the parties fail to negotiate a resolution to a dispute within a reasonable time (not exceeding 20 Business Days from formal notice of the dispute being given by one party to the other), either party may require that the dispute be submitted to mediation through JAMS, such mediation to take place in Los Angeles, California. A mediator shall be selected by mutual agreement or through procedures provided by JAMS. In such case:
a) the mediator will not be acting as an expert or as an arbitrator; b) the mediator will determine the procedure and timetable for the mediation; and c) the parties will share equally the cost of the mediation.
All offers, promises, conduct and statements, whether oral or written, made in the course of the EXHIBIT E, PROJECT PB22-093
negotiation by any of the parties, their agents, employees, experts and attorneys are confidential, privileged and inadmissible for any purpose, including impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.
Neither party may issue any legal proceedings (other than for urgent interlocutory relief) relating to any dispute, unless that party has first taken all reasonable steps to comply with the dispute resolution process above. All applicable statutes of limitation and defenses based upon the passage of time shall be tolled while the procedures specified in this clause 14.2 above are pending and for 15 calendar days thereafter. The parties will take such action, if any, required to effectuate such tolling.
13.10 Waiver: No waiver of any breach, or failure to enforce any provision, of this Agreement at any time by either party shall in any way limit or waive the right of such party to subsequently enforce and compel strict compliance with the provisions of this Agreement.
13.11 Severance: Any provision in this Agreement which is or becomes unenforceable, illegal or invalid for any reason shall be severed and shall not affect the enforceability, legality, validity or application of any other provision which shall remain in full force and effect.
13.12 Assignment: PX may assign all or any of its rights and obligations under this Agreement to any person without Customer's consent. Customer may not transfer or assign any of its liabilities or rights under this Agreement to any other person without PX's prior written consent.
13.13 Amendment: Except as expressly provided for in this Agreement, no amendment to this Agreement will be valid unless recorded in writing and signed by a duly authorized senior representative of each party.
13.14 Governing Law and Jurisdiction: This Agreement is governed by the laws of California.
Subject to the terms of clause 14.2, the parties submit to the jurisdiction of the courts of the State of California in respect of all matters relating to this Agreement.
13.15 Remedies: The rights, powers and remedies provided in this Agreement are not exclusive of any rights, powers or remedies provided by law.
13.16 Subcontracting: PX may appoint subcontractors to perform any of its obligations under this Agreement.
13.17 Notices: Any notice or other communication to be given under this Agreement must be in writing and must be served by one of the following means and in respect of each is deemed to have been served as described:
a) By personal delivery – when received by the party.
b) By post by registered or ordinary mail – on the second working day following the date of posting in the United States mail to the addressee’s registered office. c) By email – when acknowledged by the party orally or by return email or otherwise in writing. d) By facsimile – when sent to the correct facsimile number (with written transmission confirmation).
The addresses for the parties for Notices shall be as set out on Page 1 of this Agreement or such other address as either party specifies by notice in writing to the other given in accordance with this clause 14.10.
13.18 In the event of any conflict or inconsistency between this Agreement and the terms of a purchase order made by Customer to PX or a reseller of PX goods or services, this Agreement shall govern and control.
EXHIBIT E, PROJECT PB22-093
Exhibit C – Insurance Certificate
Exhibit D – Professional Services Statement of Work (“SOW”) SAMPLE
NOTE: An actual scope of work will be created during project planning. The SOW is created collaboratively between the Customer and the assigned EnvisionWare implementation consultant (“IC”) after introductory meetings and in some cases after some introductory training. This process ma y depend upon review of certain licensed materials that are accessed via the EnvisionWare Customer Center. The IC will obtain information about contacts that should be granted customer center access during the introductory meeting.
The SOW defines your goals, the deliverables and the measurements that define completion.
Project Scope:
The objective of this project is to deliver, configure (to specifications) and install an EnvisionWare ___________ software/hardware solution that will ____________ To meet this objective your EnvisionWare Professional Services IC will work with you during the planning phase of the project to understand your product needs and your desired patron and staff experience.
Services Provided:
1. Installation of Product(s)
2. Training
3. Post-Installation Follow-Up
4. Transition to Support
Project Milestones:
1. Completion of Installation Phase
2. Completion of Post-Installation Phase
a. Project Sign-Off
b. Transition to Support
Product Scope:
This project will consist of the following ___________ solution.
1. 2.
EnvisionWare Responsibilities:
1. Ensure the Library is Prepared for the Onsite Installation
2. Training
3. Constant Follow-up and Update Provided to the Customer Customer Responsibilities:
1. Network Management
a. Static IP address for ________________
b. ______________
2. Power Outlets and Ethernet connections ____________
3. Computers and/or server or VM’s _________________
EXHIBIT E, PROJECT PB22-093
Acceptance Testing and Criteria
1. Acceptance Criteria: Acceptance tests shall be conducted at your site or sites and on your equipment to ensure that the Product (i) performs according to the Specifications without material error and (ii) can be effectively utilized in your operating envir onment. The following are defined as the “ Acceptance Criteria”:
A. Item Test Pass
B. Item Test Pass
2. Project Acceptance: When all individual acceptance tests pass for all items on a Statement of Work, the Customer is required to acknowledge the Project Acceptance via electronic submission. Submission is an indication that the mutually defined tests pass for all installed devices and software except for any open issues documented as support cases.
Submitting Project Acceptance activates support services and provides all support assistance in accordance with the Maintenance Program Agreement applicable to your account. Support is unable to assist a customer until Project Acceptance is submitted NOTE: Acceptance indicates that all tests are completed and the Customer’s access to Support is activated.
It does not necessarily mean that there are no outstanding or follow-up issues. In some situations, a Support Case may be opened to resolve an issue via the standard support channel. Some Cases may represent enhancement requests and others’ defects, which do not prevent the live use of the system.
After Acceptance the Support Center will copy your Implementation Consultant on all communications for a period of two (2) weeks . Support has access to all documentation created during your project and is proficient in assisting customers in real time with critical and non -critical support concerns. The Support Center has emergency access to a Consultant during the transition period. Consultants are engaged in scheduled projects following the date scheduled for acceptance testing and are generally not available during business hours.
NOTE: Software or hardware used in a live production environment , i.e. “beneficial use ” will be considered as Project Acceptance.
EXHIBIT E, PROJECT PB22-093
Exhibit E – Payment Card Industry Data Security Standard For customers purchasing any EnvisionWare eCommerce product the following provisions apply to eCommerce products processing credit card payments:
ENVISIONWARE will not have access to CUSTOMER personal information, including, without limitation, social security number, driver’s license number or other state issued identification number, date of birth, credit card number(s) and/or bank account number(s); and WHEREAS, in light of the sensitive and confidential nature if the information, the parties enter into this amendment agreement.
NOW, THEREFORE, in consideration of the promises set forth in this Agreement between the parties and the promises in this Addendum, ENVISIONWARE and CUSTOMER agree as follows:
A. ENVISIONWARE REPRESENTATIONS AND WARRANTIES
ENVISIONWARE represents and warrants that its Services under the Agreement and this Addendum, which are provided from EnvisionWare and Verifone or Payment Express, shall comply with Payment Card Industry Data Security Standard (PCI DSS) and further represents and warrants the following to CUSTOMER:
1. that the product being purchased by CUSTOMER currently complies with the PCI DSS;
2. that it is obligated to maintain compliance with the PCI DSS; including remaining aware at all times of changes to the PCI DSS and promptly implementing all procedures and practices as may be necessary to remain in compliance with the PCI DSS, in each case, at ENVISIONWARE’s sole cost and expense except for costs incurred by Customer for becoming and maintaining PCI compliance via Trustwave self assessment or similar annual subscription services;
3. that it is responsible for the security of cardholder data that it possesses by means of its Agreement with CUSTOMER, and that this acknowledgement satisfies Section 12.8 of the PCI DSS requiring the Parties to maintain a written agreement acknowledging that ENVISIONWARE has responsibility for the security of cardholder data it possesses by means of its Agreement with CUSTOMER; and
4. that its collection, access, use, storage, disposal and disclosure of Personal Information as defined by the PCI council does and will comply with all applicable federal, state, and foreign privacy and data protection laws, as well as all other applicable regulations and directives.
B. ENVISIONWARE SERVICES
ENVISIONWARE will use reasonable and necessary precautions to prevent anyone other than its authorized employees from monitoring, using, or gaining access to CUSTOMER personal information.
ENVISIONWARE will use reasonable and necessary precautions to protect CUSTOMER personal information from loss, corruption or unauthorized access or alteration and to prevent the disclosure of CUSTOMER personal information to anyone other than authorized ENVISIONWARE or CUSTOMER employees.
EXHIBIT E, PROJECT PB22-093
ENVISIONWARE will periodically test and re-evaluate the effectiveness of such precautions.
ENVISIONWARE will notify CUSTOMER within 24 hours, if such precautions are violated and ENVISIONWARE has reason to believe that CUSTOMER personal information is affected or disclosed or in danger of being affected or disclosed. Notwithstanding the foregoing, ENVISIONWARE may use, process, view the contents of or monitor CUSTOMER personal information to the extent necessary for ENVISIONWARE to perform under this Agreement.
ENVISIONWARE eCommerce policies require that CUSTOMER establish passwords for the VeriFone gateway known only to CUSTOMER. ENVISIONWARE requires remote access to the CUSTOMER software for diagnostic purposes when a problem occurs but will request that CUSTOMER change any password provided to ENVISIONWARE for the remote session. ENVISIONWARE will not, under any circumstances, maintain a persistent connection to Customer internal eCommerce-related systems and will access only when a problem occurs and when CUSTOMER enables remote access.
Customer is required to assert control as above and to configure all eCommerce-related passwords to industry-approved secure passwords that are changed every 90 days. CUSTOMER must maintain a list of users who are approved to access the VeriFone gateway.
In the event that security vulnerabilities are identified, ENVISIONWARE will promptly notify CUSTOMER and will provide instructions to mitigate risk of that vulnerability being exploited.
ENVISIONWARE will provide a patch release or security update within 48 hours of a security vulnerability being discovered and will provide support as necessary to properly deploy the patch or security update at ENVISIONWARE’s sole cost and expense while Customer is under maintenance.
ENVISIONWARE will notify CUSTOMER of any security breach within 24 hours of notice or discovery of same. CUSTOMER will notify ENVISIONWARE of any security breach or discovery of same within 24 hours. Customer’s maintenance agreement will be upgraded to 24x7 live support to facilitate rapid reporting and remedy of issues. ENVISIONWARE shall immediately investigate same and shall coordinate its investigation with CUSTOMER to verify that any breach has been remedied and any security intrusion or flaw eliminated as the sole cost and expense of ENVISIONWARE, unless said security breach was the result of actions or inactions of CUSTOMER.
C. LIABILITY AND INDEMNIFICATION
ENVISIONWARE agrees that it is responsible for the security of cardholder data that it possesses by means of this Agreement, and that the indemnification provision of this section applies to any failure of ENVISIONWARE to protect cardholder data from unauthorized disclosure resulting from a lack of compliance with the Payment Card Industry Data Security Standard or arising from any other negligent act or omission by ENVISIONWARE. Any breach in security related to failure of ENVISIONWARE to protect cardholder data resulting from a violation of any obligation imposed by or established pursuant to the Payment Card Industry Data Security Standard shall constitute a “material breach” of the Agreement ENVISIONWARE will not be liable for the disclosure, monitoring, loss, alteration or corruption of CUSTOMER private information to the extent it results from CUSTOMER’s failure to implement reasonable security measures to protect against the unauthorized use of facilities, computers network access devices and passwords.
Notwithstanding the foregoing, ENVISIONWARE agrees to that CUSTOMERS in the United States will be protected under EnvisionWare’s PCI Assurance Program, which provides an AIG zero deductible insurance policy with up to $100,000.00 of coverage per breach and up to a maximum annual EXHIBIT E, PROJECT PB22-093
limit of $500,000.00 per Exhibit: PCI Assurance. ENVISIONWARE agrees to renew the policy, or equivalent, and keep CUSTOMER as an additional insured party through the duration of the contract including all future renewal years.
D. ENTIRE EXHIBIT
This EXHIBIT constitutes the entire PCI DSS terms of the Agreement between the parties and shall supersede and merge all prior and contemporaneous communications, understandings and agreements with respect to the subject matter hereof.
PCI ASSURANCE COVERAGE SUMMARY
CUSTOMER (Merchant) in the United States will be enlisted in the PCI Assurance Program, which is merchant coverage for an actual breach as well as the costs of a potential credit card breach.
The following is an outline of coverage, benefits and clarifications:
• Coverage includes a breach, and/or the costs associated with a suspected breach • $100,000.00 of coverage per incident
$500,000.00 annual maximum protection per CUSTOMER
$0.00 deductible
Maximum annual credit card transaction volume per CUSTOMER: $999,999.00 • Underwritten by AIG Insurance
• Coverage is valid even if CUSTOMER(Merchant) is not currently PCI Compliant. However, merchant must become PCI compliant to reinstate the policy after a reported incident. • Claim processing time is 30-60 days.
EXHIBIT E, PROJECT PB22-093
Item Number: 10
City Council / Board of Directors
Written Communications
Meeting of: November 1, 2022
Submitted By:
Jenele Davidson, Deputy City Manager
Subject:
Consultant/Professional Services Provider Agreement with Community Works Design Group
Recommendation:
That the Honorable City Council approve the Consultant/Professional Services Provider Agreement with Community Works Design Group in the amount of $219,572.50 for the landscape and civil design work for the Eva Dell Park renovation project.
Fiscal Impact:
Acting in accordance with the staff recommendation will result in an expenditure of $219,572.50 to complete Tasks 1 & 2 as outlined in Exhibit B of the Agreement (Attachment A). No additional appropriation is required. The Prop 68: Statewide Park Development Program grant award and budget appropriation for the renovation of Eva Dell Park was previously approved by the City Council at the April 5, 2022 meeting. The project budget is as follows:
•Eva Dell Phase 1, (2707501C-55070-80080) - $3,325,171.00 The award of a Consultant/Professional Services Provider Agreement to Community Works Design Group falls within the anticipated pre-construction costs for this project which were estimated at $645,581.56 within the grant budget.
Background:
In June 2018, California voters passed Proposition 68, the California Drought, Water, Parks, Climate, Coastal Protection and Outdoor Access for All Act, which authorized $4 billion in general obligation bonds for state and local parks, environmental protection and restoration projects, water infrastructure projects and flood protection projects. The largest portion of the bond revenue ($725 million) was earmarked for neighborhood parks in park-poor neighborhoods. Funds are to be awarded through the competitive grant 2 8
3 5
program that was established under the Statewide Park Development and Community Revitalization Act of 2008, also known as the Statewide Park Program (SPP).
SPP is the largest park-related grant program in California’s history, with funding of over $1 billion made available between the combination of Proposition 68 (2018) and Proposition 84 (2006) Bond Acts. The program is administered by the Office of Grants and Local Services (OGALS) under the State of California Department of Parks and Recreation. The initial first three rounds of the SPP awarded over $622 million for new, expanded or renovated park projects. Round 4, the final round of grant funding under Proposition 68 bonds, allocated $650,275,000; of which $134,125,000 is designated for renovating parks.
On March 2, 2021, the City Council adopted Resolution No. 21-009 approving the City’s application and authorizing the City Manager or his designee to sign and submit all contract documents in the event the grant was awarded. Accordingly, the grant application was submitted on March 11, 2021.
On December 8, 2021, the City received a letter advising the Eva Dell Park grant application was selected for funding in the amount of $3,325,171.00.
On April 5, 2022, the City Council adopted Resolution No. 22-019 accepting the 2018 Parks Bond Act, Statewide Park Development and Community Revitalization Grant for Eva Dell Park and increasing the Fiscal Year 2021/2022 budget for the associated revenue and expenses.
The City of Victorville Strategic Plan 2020-2023 identifies multi-year strategic goals and various strategies to work toward achieving those goals. Goal E, Invest in Infrastructure, focuses on creating a healthy and livable community by maintaining the city’s assets through investment in infrastructure and innovations. In accordance with one strategy outlined within the plan, Council adopted the Parks and Recreation Master Plan on December 15, 2020, and staff have been working to implement recommendations therein.
The grant award will help add and update amenities for Eva Dell Park, including an all- inclusive playground, splash pad, new & renovated ball field lighting, shade structures and picnic areas, walking loop, renovated and new parking lots. Some of these elements were identified as infill opportunities for Eva Dell Park within the Park and Recreation Master Plan (Attachment B) to help bring additional amenities and maximize existing park space for recreational purposes.
Discussion:
Staff included an allocation for pre-construction costs within the grant budget which will cover, among other expenses, the landscape and civil design of the Eva Dell Park renovation. Securing a qualified landscape architect firm is the first step in renovating the park. As part of the scope of services within the Request for Proposal (RFP), the firm will be tasked with developing a conceptual design and contract document preparation. 2 8
3 5
Task 1 requires providing a timeline, two (2) conceptual plans based on the site plan submitted to OGALS as part of the grant application, amenity sizing, budget estimates, identification of site constraints and presentation of options at a public meeting of the Community Services Advisory Committee.
Task 2 involves preparing the final conceptual plan and development of construction plans, specifications and bid documents. This will enable the City to move forward with procuring the park amenities and associated contracts to ensure project completion occurs by the grant deadline of June 30, 2025.
Task 3 and 4 are optional scopes that may be added at a later date via contract amendment, if needed. Task 3 would have the selected firm assist with construction management. Task 4 encompasses items related to project completion including as- builts, manuals and closeout documents. If added later, these tasks would also fall within the project’s estimated pre-construction budget.
The RFP was issued on September 16, 2022. The RFP was advertised in the San Bernardino Sun and on the City’s website. Additionally, an email notification went out to thirteen (13) landscape architect firms with experience in park planning and design.
Proposals were due back to the City on October 3, 2022.
One proposal was received from Community Works Design Group (CWDG), based out of Riverside, California. Staff evaluated the proposal based on the criteria outlined in the RFP and the firm earned a 92.5 out of 100 rating.
CWDG has ample experience in conceptual and civil park design. Recent projects include:
•Milburn-Dakota Park, City of Fresno – Prop 68 funding
•Enchanted Hills Park, City of Perris
•Jonathan & Chamberlaine Park, City of Adelanto – Prop 68 funding Additionally, the firm serves as the on-call landscape architect firm for the County of Riverside, Jurupa Area Park & Recreation District, City of Ontario, City of Los Angeles and the City of Palm Springs.
CDWG’s proposal, project experience and references cause staff to believe they are a competent and qualified firm to handle the Eva Dell Park renovation civil and landscape design project. Therefore, staff is recommending that the City Council approve the Consultant/Professional Services Provider Agreement with Community Works Design Group in the amount of $219,572.50 for the landscape and civil design work for the Eva Dell Park renovation project.
Staff is available for questions.
Attachments: A. Agreement
2 8
3 5
B. Park and Recreation Master Plan – Eva Dell Park
ATTACHMENT A
1 Consultant/Professional Services Provider Agreement/Community Works Design Group, Project PB22-116
CONSULTANT/PROFESSIONAL SERVICES PROVIDER AGREEMENT
BY AND BETWEEN
THE CITY OF VICTORVILLE
AND
COMMUNITY WORKS DESIGN GROUP
FOR
LANDSCAPE AND CIVIL DESIGN FOR EVA DELL PARK
RENOVATIONS, PROJECT PB22-116
THIS CONSULTANT/PROFESSIONAL SERVICES PROVIDER AGREEMENT (hereinafter “Agreement”), is made and entered into by and between THE CITY OF VICTORVILLE, a municipal corporation located in the County of San Bernardino, State of California, hereinafter referred to as the “City” , and Community Works Design Group, a California corporation , hereinafter referred to as “ Consultant.” City and Consultant are sometimes hereinafter referred to individually as a “Party” and collectively referred to as the “Parties.”
RECITALS:
WHEREAS, the City requires Consultant/Professional Services Provider Agreement for Landscape and Civil Design for Eva Dell Park Renovations, Project PB22-116; and
WHEREAS, Consultant represents that it is fully qualified to perform the consulting and/or professional services required for performance under this Agreement by virtue of its experience and the training, education and expertise of its principals and its employees; and
WHEREAS, in light of the facts set forth above, the City desires to retain the services of a qualified Consultant to provide, on an independent contractor basis, Landscape and Civil Design for Eva Dell Park Renovations; and
NOW THEREFORE, IN CONSIDERATION OF THE COVENANTS, CONDITIONS, AND
PROMISES CONTAINED HEREIN AND FOR SUCH OTHER GOOD AND VALUABLE
CONSIDERATION, RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED, THE PARTIES HERETO AGREE AS FOLLOWS:
Section 1. RECITALS
The Recitals set forth above are true and correct and are hereby incorporated into this Agreement by this reference, as though set forth fully herein.
Section 2. SCOPE OF SERVICES
Consultant shall provide to the City those services set forth in the Scope of Services, attached hereto as Exhibit “A” and incorporated as part of this Agreement by this reference.
Section 3. COMPENSATION
The City shall pay to Consultant a sum not to exceed Two Hundred Nineteen Thousand Five Hundred Seventy -two and 50/100 Dollars ($219,572.50 ) for faithful 2 Consultant/Professional Services Provider Agreement/Community Works Design Group, Project PB22-116
performance of the services to be rendered under this Agreement, subject to the Proposal provisions of Section 4, below . No expense reimbursements, including, but not limited to, reimbursements for travel, parking, lodging, and/or meals shall be paid to Consultant unless such expense reimbursements: (i) are specifically provided for and described by nature and type in Exhibit “B”, below; (ii) appear on Consultant’s monthly invoices to City; (iii) are supported by the appropriate receipts and other such documentation as the City shall require; and (iv) are directly related to the Scope of Services to be performed under this Agreement. In addition, any and all reimbursements shall be made in accordance with any City policy governing same.
Section 4. COST PROPOSAL
The City shall pay Consultant as provided in the Cost Proposal, attached hereto as Exhibit “B”, and incorporated as part of this Agreement by this reference. The provisions of Exhibit “ B” notwithstanding, in order to receive payments, Consultant shall be required to submit to the City detailed monthly invoices which include, if applicable, a description of all services/tasks performed, the number of hours expended on each service/task, the name of the person performing the service/task, and expense reimbursement information, if any, as required by Section 3, above. Provided that services have been s atisfactorily rendered, invoices shall be paid by the City approximately thirty (30) working days following receipt of Consultant’s invoice.
S ection 5. PREVAILING WAGES
a. In accordance with the provisions of the California Labor Code (1720,1770-1776, 1810, 1813 and 1815, as amended and applicable) , the State Director of Industrial Relations has determined the general prevailing rates of per diem wages in the locality where the Project is to be done. Copies of the updated Wage Determination rates are available from the State of California via the internet at www.dir.ca.gov. Additionally, copies of the prevailing rate of per diem wages are on file at the City of Victorville Finance Department and shall be made available for review to any interested party on request. Notwithstanding anything in the Contract Documents to the contrary, Contractor and all subcontractors shall pay not less than said specified State of California rates to all workers employed by them in the execution of the work contemplated by this Agreement. Contractor shall be responsible for using correct and current prevailing wage rates.
b. AB219 (as applicable) adds Section 1720.9 to the Labor Code, the hauling and delivery of ready-mixed concrete to carry out a public works contract, with respect to contracts involving state agency or any political subdivision of the state. Section 1720.9 defines the term “ready-mixed” concrete and specifies that the rate of pay shall be the current prevailing wage “for the geographical area in which the factory or batching plant is located” as determined by the DIR. The statute also requires a written agreement between the party hauling or delivering the ready-mixed concrete and the party that engaged its services.
The delivery company shall provide certified payroll records under Labor Code section 1776(a) to the party that engaged its services and to the general contractor within five working days after the employee has been paid, accompanied by a written time record within five working days after the employee has been paid, accompanied by a written time record. The time record must be certified by each driver for the performance of job duties.
c. An error on the part of any awarding body does not relieve the Contractor from the responsibility for payment of the correct State prevailing wage and compliance with the maintenance and inspection of payroll records, posting of prevailing wage rates at work site, employment of apprentices, and other requirements of California Labor Code 3 Consultant/Professional Services Provider Agreement/Community Works Design Group, Project PB22-116
Section 1720, et seq.; California Code of Regulations, Title 8, Section 16000 et seq.; and all other applicable State labor laws. Contractor further acknowledges and agrees that it will be independently responsible for reviewing the applicable laws and regulations and effectuating compliance with those laws. Contractor will require the same of all its subcontractors.
NOTE: Copies of the Certified Payrolls, Proof of Payroll submissions and appropriate Lien Releases are required with each invoice to the City. Payment of the invoice may be delayed when Payroll related documents and/or lien releases are not included with the invoice. An error on the part on any awarding body does not relieve the Contractor from responsibility for payment of the prevailing wage of per diem wages and penalties pursuant to Labor Code (1770 - 1776).
Section 6. TERM OF AGREEMENT
This Agreement shall be for an Initial Term of commencing on the date of full execution of the Agreement (the “Commencement Date”) and expiring on December 30, 2023 (the “Termination Date”) (the “Term”) , unless terminated earlier pursuant to Section 21 of this Agreement. From and after the Termination Date, and upon subsequent Agreement by the Parties, this Agreement may continue on a month- to-month basis until terminated pursuant to Section 21 below.
This Agreement may be extended for One (1) additional one-year period (hereinafter “Option Period”), at the option of City, subject to satisfactory performance as determined by the City. City shall give Consultant sixty (60) days advance written notice prior to the expiration the initial Term and sixty (60) days advance written notice prior to the expiration date of each subsequently exercised Option Period, if any, should the City decide to exercise its option(s) to extend. In the event City does not give Consultant such written notice of its option to extend, this Agreement shall terminate at the end of the then -current Term or Option Period without further notice from either Party, unless terminated earlier pursuant to the provisions of Section 21 below. Should the City fail to give Consultant the sixty (60) days written notice of its intention to exercise any Option Period, the City may, in its sole discretion, elect to exercise any Option Period at a later date, following written inquiry from Consultant.
Section 7. INDEPENDENT CONTRACTOR STATUS
It is the express intention of the Parties that Consultant is an independent contractor and not an employee, agent, joint venture, or partner of the City. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between the City and Consultant or any employee or agent of Consultant . Both P arties acknowledge that Consultant is not an employee for state or federal tax purposes or any other purpose. Consultant shall retain the right to perform services for others during the term of this Agreement.
Section 8. REPRESENTATIONS AND ACKNOWLEDGMENTS
REGARDING INDEPENDENT CONTRACTOR’S STATUS OF
CONSULTANT
a. Consultant represents and acknowledges the following:
4 Consultant/Professional Services Provider Agreement/Community Works Design Group, Project PB22-116
(1) The City is not required to provide any training or legal counsel to Consultant or its employees in order for Consultant to perform the services described in this Agreement.
(2) Performance of the services described in this Agreement does not have to be integrated into the daily business operations of the City.
(3) The services described in this Agreemen t can be performed without the use of City equipment, materials, tools, or facilities, unless otherwise provided under a separate Agreement.
(4) Nothing in this Agreement shall be interpreted to imply that the City must maintain any contractual relationship with Consultant on a continuing basis after termination of this Agreement.
(5) The City will not be requested or demanded to assume any liability for the direct payment of any salary, wage, or other such compensation to any person employed by Consultant to perform the services described in this Agreement.
(6) Consultant shall not at any time or in any manner represent that it or any of its officers, employees, or agents are employees of the City.
b. The City represents and acknowledges the following:
(1) Consultant is solely responsible for determining who, under the supervision or direction of Consultant, will perform the services set forth in this Agreement.
(2) The City will not hire, supervise, or pay any employees or assistants working for Consultant pursuant to this Agreement. Nothing contained in this Agreement shall prevent the City from hiring Consultant’s employees or assistants after termination of this Agreement.
(3) Nothing in this Agreement shall be interpreted to imply that Consultant must maintain any contractual relationship with the City on a continuing basis after termination of this Agreement.
(4) It is the sole responsibility of Consultant to set the hours in which Consultant performs or plans to perform the services set forth in this Agreement.
(5) Consultant is not required to devote full time to the business operations of the City in order to perform the services set forth in this Agreement.
(6) Unless deemed necessary under certain circumstances, Consultant is not required to perform the services set forth in this Agreement at City Hall or on City -owned property.
(7) Other than attendance at required public meetings and public hearings, and complying with the provisions of the Proposal set forth in Exhibit B and any procedural requirements set forth by law, Consultant is not required to perform the services set forth in this Agreement in any particular order or sequence.
(8) Nothing in this Agreement shall be interpreted to preclude Consultant from working for other persons or firms, provided that such work does not create a conflict of interest.
5 Consultant/Professional Services Provider Agreement/Community Works Design Group, Project PB22-116
Section 9. NOT AGENT OF THE CITY
a. Nothing contained in this Agreement shall be deemed, construed, or represented by the City or Consultant or by any third person to create the relationship of principal and agent.
b. Consultant shall have no authority, express or implied, to act on behalf of the City in any capacity whatsoever as an agent, nor shall Consultant have any authority, express or implied, to bind the City to any obligation whatsoever.
Section 10. LICENSES AND PERMITS
Consultant represents that it has obtained and will maintain at all times during the I nitial Term ( and during the Option Period, if applicable) of this Agreement all business licenses, including but not limited to a City of Victorville business license, professional licenses or certifications, or permits necessary for performing the services described in this Agreement.
Section 11. STANDARD OF PERFORMANCE; WARRANTY
a. Consultant agrees to perform all services required by this Agreement in a professional and competent manner, in accordance with the degree of skill and diligence which is normally employed by reputable professionals performing similar services under similar conditions in the same or similar locality. Such services shall also be performed in a manner which is reasonably satisfactory to Jenele Davidson, Deputy City Manager, or her designee.
b. By executing this Agreement, Consultant warrants that it:
(1) Has thoroughly investigated and considered the services and work to be performed;
(2) Has investigated the issues regarding the scope of services to be provided;
(3) Has carefully considered how the services and related work should be performed; and
(4) Fully understands the facilities, difficulties and restrictions associated with performance of the services required by this Agreement.
Section 12. FAMILIARITY WITH WORK
Should Consultant discover any latent or unknown conditions materially differing from those inherent in the services or as represented by the City, Consultant shall immediately inform the City of such fact and shall not provide any services, except at Consultant 's risk, until written instructions are received from Jenele Davidson, Deputy City Manager, or her designee.
Section 13. CONFLICTS OF INTEREST
Consultant covenants that it does not have any interest, nor shall it acquire any interest, directly or indirectly, which would conflict in any manner with the performance of Consultant’s services under this Agreement. Consultant further covenants that in the performance of services under this Agreement, no officer, employee or agent of Consultant having such interest 6 Consultant/Professional Services Provider Agreement/Community Works Design Group, Project PB22-116
shall be employed by it. In the event the City determines that Consultant must disclose its financial interests by completing and filing a Fair Political Practices Commission Form 700, Statement of Economic Interests, Consultant shall file such Form 700 with the City Clerk’s Office pursuant to the written instructions provided by the City Clerk. Acquisition or maintenance of a conflicting interest by Consultant may result in termination of this Agreement by the City.
Section 14. COMPLIANCE WITH LAWS
Consultant shall comply with all local, state, and federal laws and regulations applicable to the services to be rendered hereunder, including any rule, regulation, or bylaw governing the conduct or performance of Consultant or its employees, officers, or board members.
Section 15. C OMMERCIAL GENERAL AND AUTOMOBILE LIABILITY
INSURANCE
a. Consultant shall procure and maintain at its own expense, during the I nitial Term of this Agreement (and during the Option Period, if applicable) , Commercial G eneral Liability Insurance, of not less than One Million Dollars ($1,000,000) per occurrence, and Two Million Dollars ($2,000,000) in the aggregate, for bodily injury, personal injury, death, loss, or damage resulting from the wrongful or negligent acts by Consultant or its officers, employees, servants, volunteers, and agents and independent contractors.
b. Consultant shall further procure and maintain, at its own expense, during the Initial Term of this Agreement, (and during the Option Period, if applicable), Commercial Vehicle Liability Insurance covering personal injury and property damage, of not less than One Million Dollars ($1,000,000) combined single limit, covering any vehicle utilized by Consultant or its officers, employees, servants, volunteers, agents and independent contractors in performing the services required by this Agreement.
Section 16. WORKERS' COMPENSATION INSURANCE
a. Consultant shall procure and maintain at its own expense, during the I nitial Term of this Agreement ( and during the Option Period, if applicable), W orkers' Compensation Insurance, providing coverage as required by the California State Workers' Compensation Law.
b. If any class of employees employed by the Consultant pursuant to this Agreement is not protected by the California State Workers' Compensation Law, Consultant shall provide adequate insurance for the protection of such employees to the satisfaction of the City.
Section 17. PROFESSIONAL LIABILITY INSURANCE
a. Professional Liability Insurance or Errors and Omissions insurance as appropriate to Consultant’s profession shall be required and written on a policy form specifically designed to provide coverage for and protect against the negligent acts, errors and omissions of the Consultant in the performance of the services required by this Agreement. A minimum limit of $1,000,000 per claim and in the aggregate must be provided.
7 Consultant/Professional Services Provider Agreement/Community Works Design Group, Project PB22-116
Section 18. ADDITIONAL INSURED
Notwithstanding any inconsistent statement in any required insurance policies or any subsequent endorsements attached thereto, all insurance policies, except for the Workers' Compensation and Professional Liability, shall be endorsed to name the City and its officers, employees, servants, volunteers, agents and independent contractors, including, without limitation, the City Attorney, as Additional Insureds.
Section 19. WAIVER OF SUBROGATION RIGHTS
Consultant shall require the carriers of all required insurance policies, with exception to Professional Liability, to waive all rights of subrogation against the City and its officers, employees, servants, volunteers, agents, and independent contractors and subcontractors.
Each policy of insurance shall be endorsed to reflect such waiver.
Section 20. PROOF OF INSURANCE COVERAGE; REQUIRED
ENDORSEMENTS
a. Consultant shall secure from a good and responsible company or companies authorized to transact insurance business in the State of California, the policies of insurance required by this Agreement and furnish to the City Clerk certificates of insurance evidencing the required coverage, and policy endorsements at least one (1) business day prior to the commencement of any services to be performed under this Agreement.
b. The policies and certificates of insurance shall be endorsed to provide that in the event of cancellation or amendment of any required insurance policy for any reason whatsoever, the City shall be notified by mail, postage prepaid, not less than thirty (30) days before the cancellation or amendment is effective. In the case of cancellation for non -payment, ten (10) days advance written notice shall be given.
c. Each policy and certificate of insurance shall be endorsed to provide that the policy shall not be terminated or expire without first providing thirty (30) days written notice to the City of such termination or expiration.
d. Each policy and certificate of insurance shall be endorsed to provide that the policy will be maintained throughout the Initial Term (and during the Option Period, if applicable), of this Agreement.
e. The Commercial General Liability and Vehicle Liability policies shall be endorsed to contain the following provision: “For any claims related to this Agreement, Consultant’s coverage shall be primary with respect to the City . Any insurance maintained by the City shall be in excess of Consultant’s insurance and shall not contribute with it.”
Section 21. TERMINATION OR SUSPENSION
a. This Agreement may be terminated or suspended without cause by either Party at any time, provided that the Party initiating the termination provides the other Party at least thirty (30) days advance written notice of such termination or suspension. In the event of such termination, the City shall only be liable for payment under the payment provisions of this Agreement for satisfactory services rendered or supplies actually furnished prior to the effective date of termination.
8 Consultant/Professional Services Provider Agreement/Community Works Design Group, Project PB22-116
b. This Agreement may be terminated or suspended with cause by either Party at any time, provided that the Party initiating termination provides the other Party at least ten (10) days advance written notice of such termination or suspension. In the event of such termination, the Cit y shall only be liable for payment under the payment provisions of this Agreement for satisfactory services rendered or supplies actually furnished prior to the effective date of termination.
Section 22. TIME OF THE ESSENCE
Time is of the essence in the performance of this Agreement.
Section 23. INDEMNIFICATION
a. Except as set forth in Subsection b of this Section 23, and to the fullest extent permitted by law, Consultant shall immediately defend, indemnify, and hold harmless the City, its officers, employees, representatives, and agents (the “City Indemnitees”), from and against those actions, suits, proceedings, claims, demands, losses, costs, and expenses, including legal costs and reasonable attorneys’ fees, for any personal injuries, deaths, or property damage, including property owned by the City (collectively “Claims”) which may arise out of Consultant's negligence or willful misconduct in the performance of the services described in this Agreement, unless such Claims are proven to be caused by the negligence or willful misconduct of the City Indemnitees.
b. The provisions of this Subsection b apply only in the event that Consultant is a design professional within the meaning of California Civil Code section 2782.8 (“Design Professional”). The term Design Professional, as defined in said section, is limited to licensed architects, licensed landscape architects, registered professional engineers, professional land surveyors, and the business entities that offer such services in accordance with the applicable provisions of the California Business and Professions Code.
(1) Notwithstanding the provisions of Subsection a above, to the extent that the services to be provided under this Agreement are those of a Design Professional, Consultant's duty to indemnify, hold harmless, and defend the City Indemnitees shall be limited to the extent that any Claims arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, its officers, agents, employees or subconsultants in the performance of the services described in this Agreement.
(2) In no event shall the costs of defense charged to Consultant exceed the Consultant’s proportionate percentage of fault, except as otherwise set forth in said Civil Code section 2782.8, the provisions of which are incorporated into this Agreement by this reference.
Nothing in this Subsection b shall be construed to require Consultant to provide indemnification for Claims caused by the active negligence or willful misconduct of the City Indemnitees.
c. The City does not and shall not waive any rights that it may have against Consultant under this Section, because of the acceptance by the City, or the deposit with the City, of any insurance policy or certificate required pursuant to this Agreement. The hold harmless and indemnification provisions of this Section 23 shall apply regardless of whether said insurance policies are determined to be applicable to the claim, demand, damage, liability, loss, cost, or expense described herein.
9 Consultant/Professional Services Provider Agreement/Community Works Design Group, Project PB22-116
d. The obligation to indemnify and defend, as set forth in this Section 23, is binding on the successors, assigns, or heirs of Consultant and shall survive the expiration or any early termination of this Agreement.
Section 24. REPORTS
Upon request by Jenele Davidson, Deputy City Manager, or her designee or as otherwise required by this Agreement, including but not limited to, the Scope of Services set forth in Exhibit “A”, Consultant shall prepare and submit reports to the City concerning Consultant's performance of the services required by this Agreement.
Section 25. RECORDS
a. Consultant shall keep such books and records as shall be necessary to perform the services required by this Agreement and enable Jenele Davidson, Deputy City Manager, or her designee, to evaluate the cost and the performance of such services.
b. Books and records pertaining to costs shall be kept and prepared in accordance with generally accepted accounting principles.
c. Jenele Davidson, Deputy City Manager, or her designee, shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit, and make records and transcripts from such records.
d. Records and supporting documents pertaining to the use of funds paid t o Consultant hereunder shall be retained by Consultant and made available to Jenele Davidson, Deputy City Manager, or her designee, for purposes of performing an audit for a period of five (5) years from the date of termination of this Agreement.
Section 26. RESERVED
Section 27. CONFIDENTIALITY; OWNERSHIP OF WORK
a. Any and all documents and information obtained from the City or prepared by Consultant for the City shall be kept strictly confidential unless otherwise provided by applicable law. All City data, documents and information shall be returned to the City upon termination of the Agreement.
b. Any drawings, specifications, reports, records, documents, or other materials prepared by Consultant in the performance of services under this Agreement shall not be released publicly without the prior written approval of Jenele Davidson, Deputy City Manager, or her designee, or as required by applicable law.
c. Consultant shall not disclose to any other entity or person any information regarding the activities of the City, except with the prior written approval of Jenele Davidson, Deputy City Manager, or her designee, or as required by applicable law.
d. All original documents, reports, designs, computer files and all other materials prepared by Consultant in the course of performing the services pursuant to this Agreement, whether completed or in progress, are the property of the City and shall be surrendered to the City upon the completion of Consultant ’s services or when requested by Jenele Davidson, 10 Consultant/Professional Services Provider Agreement/Community Works Design Group, Project PB22-116
Deputy City Manager, or her designee. Such materials may be used, reused or otherwise disposed of by the City without the permission of Consultant.
e. Consultant’s covenants under this Section 27 shall survive the termination of this Agreement.
Section 28. PRINCIPAL REPRESENTATIVES
a. Scott Rice, President , is designated as the principal representative of Consultant for purposes of communicating with the City on any matter associated with the performance of the services set forth in this Agreement.
b. Jenele Davidson, Deputy City Manager, or her designee shall be the principal representative of the City for purposes of communicating with Consultant on any matter associated with the performance of the services set forth in this Agreement.
c. Either Party may designate another individual as its principal representative by giving written notice of such designation to the other Party.
Section 29. MODIFICATIONS AND AMENDMENTS; EXTRA SERVICES
a. This Agreement may be modified or amended only by a written instrument signed by both Parties.
b. During the I nitial Term, the City may request that the Consultant perform Extra Services. As used herein, "Extra Services" means any services, which are determined by the City to be necessary for the proper completion of Landscape and Civil Design for Eva Dell Park Renovations, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement. A written instrument signed by both Parties shall be required to authorize performance of and payment for Extra Services.
Section 30. ENTIRE AGREEMENT
a. This Agreement supersedes any and all prior or contemporaneous Agreement s, either oral or written, between the City and Consultant with respect to the subject matter of this Agreement.
b. This Agreement contains all of the covenants and Agreements between the Parties with respect to the subject matter of this Agreement, and each Party to this Agreement acknowledges that no representations, inducements, promises, or Agreements have been made by or on behalf of any Party, except those covenants and Agreements in this Agreement.
c. No Agreement, statement, or promise with respect to the subject matter of this Agreement, which is not contained in this Agreement, or in a valid modification or amendment to this Agreement, shall be valid or binding on either Party.
Section 31. AMBIGUITIES
This Agreement is in all respects intended by each Party hereto to be deemed and construed to have been jointly prepared by the Parties and the Parties hereby expressly agree that any uncertainty or ambiguity existing herein shall not be interpreted agains t either of them. 11 Consultant/Professional Services Provider Agreement/Community Works Design Group, Project PB22-116
Except as expressly limited by this paragraph, all of the applicable rules of interpretation of contract shall govern the interpretation of any uncertainty or ambiguity of this Agreement.
Notwithstanding the foregoing, the Parties agree that Exhibit “B” is attached hereto for reference purposes and to the extent there are any ambiguities, inconsistencies or conflicts between the terms of this Consultant/Professional Services Standard Provider Agreement and Exhibit “B” the terms of this Consultant/Professional Services Standard Provider Agreement shall control and nothing set forth in Exhibit “B” shall be deemed to supersede any of the provisions of this Consultant/Professional Services Standard Provider Agreement.
Section 32. NOTICES
a. Any notice to be provided pursuant to this Agreement shall be in writing, and all such notices shall be delivered by personal service or by deposit in the United States mail, certified or registered, return receipt requested, with postage prepaid, and addressed to the Parties as follows:
To the City: Jenele Davidson, Deputy City Manager
City of Victorville
14343 Civic Drive
Victorville, CA 92392
To Consultant: Scott Rice, Principal Landscape Architect Community Works Design Group
4649 Brockton Avenue
Riverside, CA 92506
b. Notices, payments, and other documents shall be deemed delivered upon receipt by personal service or as of the second (2nd) day after deposit in the United States mail.
Section 33. NON-LIABILITY OF CITY OFFICERS AND
EMPLOYEES
No officer or employee of the City shall be personally liable to Consultant, or any successor in interest, in the event of any default or breach by the City or for any amount, which may become due to Co nsultant or to its successor(s), or for any breach of any obligation of the terms of this Agreement.
Section 34. REVIEW BY ATTORNEYS
Each Party hereto has had its attorney(s) review this Agreement and all related documents. Each Party hereto has consulted with its attorney(s) and has negotiated the terms of this Agreement based on such consultation.
Section 35. WAIVER
a. No waiver shall be binding unless executed in writing by the Party making the waiver.
12 Consultant/Professional Services Provider Agreement/Community Works Design Group, Project PB22-116
b. No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether similar, nor shall any such waiver constitute a continuing or subsequent waiver of the same provision.
c. Failure of either Party to enforce any provision of this Agreement shall not constitute a waiver of the right to compel enforcement of such provision or any of the remaining provisions of this Agreement.
Section 36. ASSIGNMENT
This Agreement shall not be assigned by either Party without prior written consent of the other Party.
Section 37. CARE OF WORK
The performance of services by Consultant or the payment of money by the City shall not relieve Consultant from any obligation to correct any incomplete, inaccurate, or defective work at no further cost to the City, when such incomplete, inaccurate or defective work is due to the negligence of Consultant.
Section 38. CAPTIONS AND HEADINGS
The captions and headings contained in this Agreement are provided for identification purposes only and shall not be interpreted to limit or define the content of the provisions described under the respective caption or heading.
Section 39. SUCCESSORS, HEIRS, AND ASSIGNS
Except as otherwise expressly provided herein, this Agreement shall be binding upon the successors, endorsees, assigns, heirs, and personal representatives of each of the Parties to this Agreement and, likewise, shall inure to the benefit of the successors, endorsees, assigns, heirs, and personal representatives of each of the Parties.
Section 40. GENDER
In this Agreement, unless the context clearly requires otherwise, the masculine, feminine and neuter genders and the singular and the plural shall include one another.
Section 41. SEVERABILITY
If any one or more of the sentences, clauses, paragraphs, or sections contained herein is declared invalid, void, or unenforceable by a court of competent jurisdiction, the same shall be deemed sev erable from the remainder of this Agreement and shall not affect, impair, or invalidate any of the remaining sentences, clauses, paragraphs, or sections contained herein.
Section 42. GOVERNING LAW
The validity of this Agreement and any of its terms or provisions, as well as the rights and duties of the Parties under this Agreement, shall be construed pursuant to and in accordance with California law.
13 Consultant/Professional Services Provider Agreement/Community Works Design Group, Project PB22-116
Section 43. DEFAULT
a. Failure or delay by any Party to this Agreement to perform any material term or provision of this Agreement shall constitute a default under this Agreement; provided however, that if the Party who is otherwise claimed to be in default by the other Party commences to cure, correct, or remedy the alleged default within fifteen (15) days after receipt of written notice specifying such default and shall diligently complete such cure, correction, or remedy, such Party shall not be deemed to be in default hereunder.
b. The Party claiming that a default has occurred shall give written notice of default to the Party in default, specifying the alleged default. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default; provided, however, the injured Party shall have no right to exercise any remedy for a default hereunder without delivering the written default notice, as specified herein.
c. Any failure or delay by a Party in asserting any of its rights or remedies as to any default shall not operate as a waiver of any default or of any rights or remedies associated with a default.
d. In the event that a default by any Party to this Agreement may remain uncured for more than fifteen (15) days following written notice, as provided above, the injured Party shall be entitled to seek any appropriate remedy or damages by initiating legal proceedings.
Section 44. CUMULATIVE REMEDIES
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default of any other default by the other Party.
Section 45. VENUE
All proceedings involving disputes over the terms, provisions, covenants, or conditions contained in this Agreement and all proceedings involving any enforcement action related to this Agreement shall be initiated and conducted in the applicable court or forum in San Bernardino County, California.
Section 46. ATTORNEYS’ FEES
In the event any action, suit, or proceeding is brought for the enforcement of, or the declaration of any right or obligation pursuant to this Agreement, or as a result of any alleged breach of any provision of this Agreement, the prevailing Party in such suit or proceeding shall be entitled to recover its costs and expenses, including reasonable attorneys’ fees, from the losing Party, and any judgment or decree rendered in such a proceeding shall include an award thereof.
14 Consultant/Professional Services Provider Agreement/Community Works Design Group, Project PB22-116
Section 47. EFFECTIVENESS OF AGREEMENT
This Agreement shall not be binding upon the City, until signed by the authorized representative(s) of Consultant , approved by the City ’s Risk Manager, and executed by the authorized City personnel or Mayor.
Section 48. REPRESENTATIONS OF PARTIES AND PERSONS
EXECUTING AGREEMENT
a. Each of the Parties to this Agreement hereby represents that all necessary and appropriate actions of their governing bodies have been taken to make this Agreement a binding obligation of each of the Parties hereto.
b. The persons executing this Agreement warrant that they are duly authorized to execute this Agreement on behalf of and bind the Parties each purports to represent.
Section 49. COUNTERPARTS
This Agreement may be executed by the P arties in counterparts, and when executed by each of the Parties, each counterpart shall be deemed to be a part of this Agreement.
(END OF THIS PAGE)
15 Consultant/Professional Services Provider Agreement/Community Works Design Group, Project PB22-116
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the dates written below.
THE CITY OF VICTORVILLE COMMUNITY WORKS DESIGN
GROUP
By:______________________________ By:_____________________________ Debra Jones, Scott Rice,
Mayor Principal Landscape Architect
Dated: ___________________________ Dated:__________________________
ATTEST
By:______________________________
Jennifer Thompson,
City Clerk
Dated:___________________________
THE CITY OF VICTORVILLE APPROVED AS TO STANDARD
FORM:
By: _______________________________ By: ____________________________ Lee Brown, Andre de Bortnowsky,
Risk Manager City Attorney
Dated:______________________________ Dated:__________________________
16 Consultant/Professional Services Provider Agreement/Community Works Design Group, Project PB22-116
EXHIBIT A
SCOPE OF SERVICES
The City agrees to engage Service Provider and Service Provider agrees to perform the Work as generally described in the Request for Proposal, Project PB22 -116, to include all applicable Addenda, portions of which are attached hereto for ease of reference as Exhibit "A", and the entirety of which is currently on file in office of the City Clerk ; and the prices set forth in Service Provider’s Cost Proposal (attached as Exhibit "B).
CITY OF VICTORVILLE
RFP FOR LANDSCAPE AND CIVIL DESIGN FOR EVA DELL PARK RENOVATIONS, PB22-116
SECTION II
SCOPE OF SERVICES
SCOPE OF WORK
Phase 1
Task 1: Conceptual Design
A kick-off meeting with City staff will be required after execution of a Consultant Service Agreement.
The consultant shall meet with City staff to conduct introductions, discuss the scope of work, review stakeholder comments and discuss project schedule including design, construction and grant requirements. The consultant shall prepare and distribute a meeting agenda at least three (3) working days prior to any meetings, prepare and submit meeting minutes to the City within one (1) week after each meeting. The consultant shall obtain a participant list, comprehensive meeting notes, and action items from each meeting.
The consultant shall review the State approved conceptual level site plan, the City’s General Plan, Specific Plans, and any supplemental planning documents, policies, and programs. The Proposition 68 grant application process required a conceptual park plan that was conceived and designed by the community. Key park amenities may not be altered. Key stakeholders involved with the conceptual park design process included local residents, community advocates including churches and nonprofit organizations.
Deliverables
• Meeting schedule
• Meeting agenda and minutes
• Project schedules/timeframes
• Site visit and grant document review.
• Develop two (2) park and amenity site plans for items including landscaping, pathways, splash pad, all- inclusive playground, walking path, sports field lighting, park lighting, ballfield lighting renovation, new parking lot, dog park, (2) renovated parking lots and shade structures with rough cost estimates.
Amenity sizing within budget.
Identify site constraints.
• Prepare and present project options to the Community Services Advisory Committee (CSAC) for input.
EXHIBIT A
17/Consultant/Professional Services Provider Agreement/Community Works Design Group/Project PB22-116 Phase 2
Task 2: Contract Document Preparation
The consultant shall prepare one final conceptual site plan based on comments received from the City’s CSAC, a site utility plan, grading and drainage plan, construction timeline and budget estimate. The consultant shall review all pertinent City standards for park development and apply the approved standards to the Eva Dell Park Renovation project. Upon approval by City, consultant will proceed to develop construction plans and specifications.
Deliverables
• Prepare final conceptual plan as approved by the City. • Prepare final project to City Council as necessary.
• Prepare plans, specifications, bid forms and estimates at 35%, 65% and 95% design levels. The project plans shall include but not be limited to the following:
Construction details and Constructability review
Project site layout with necessary elevations
Demolition, grading and drainage
Electrical and plumbing
Structural and foundation details
Lighting and cameras
Security fencing
Landscaping and irrigation
Utility
• Surveying necessary for design and construction of the selected project. • Prepare required supplemental reports as needed, such as geotechnical, electrical lighting, engineering, etc.
• Participate in meetings with City to discuss project construction and expected facility maintenance.
• Develop final bid specifications, contract documents and cost estimates. • Submit plans to the City of Victorville in preparation for the selected contractor to obtain all required permits.
EXHIBIT A
18/Consultant/Professional Services Provider Agreement/Community Works Design Group/Project PB22-116 19 Consultant/Professional Services Provider Agreement/Community Works Design Group, Project PB22-116
EXHIBIT B
C
OST PROPOSAL
S
ee Attachment
EXHIBIT B
EXHIBIT B
20/Consultant/Professional Services Provider Agreement/Community Works Design Group, Project PB22-116
EXHIBIT B
EXHIBIT B
21/Consultant/Professional Services Provider Agreement/Community Works Design Group, Project PB22-116
EXHIBIT B
EXHIBIT B
22/Consultant/Professional Services Provider Agreement/Community Works Design Group, Project PB22-116
ATTACHMENT B
Victorville Parks Master Plan
Amenity Infill Matrix
120,108 43,802
Traditional Recreation Facilities for Infill Typical SF 1 2 Ball Field 20,000-100,000 • •
Sml Softball Field (170'-200' Fence) 20,000-27,750 •
Lrg Softball Field/Sml Baseball Field (200'-230' Fence) 25,000-35,000 • Med Baseball Field (300'-350' Fence) 39,500-61,500
Lrg Baseball Field (350'-400' Fence) 83,000-105,500
Bocce Ball/Shuffleboard 5,000-10,000 • •
Community Center/Gym 25,000-70,000 • •
Court/Rink Sports 2,000-5,000 • •
Dog Park 10,000-75,000 • •
Outdoor Gym and Exterior Exercise Areas 5,000-20,000 • • Pickleball 2,500-3,500 • •
Picnic Areas 500-1,500 • •
Playgrounds 4,000-6,000 • •
Soccer Field 4,000-75,000 • •
Sml Soccer Field (6U & 8U) 4,050-11,250 • •
Med Soccer Field (10U & 12U) 25,200-36,000 •
Lrg Soccer Field (14U & 16U+) 54,000-86,400+
Tennis 7,200-28,000 • •
Volleyball 4,000-16,000 • •
Non-Traditional Recreation Facilities for Infill for Infill Adventure Playgrounds 4,000-6,000 • •
BMX Course 40,000-60,000 • •
Community Garden 2,000-40,000 • •
Disk Golf Course 50,000-200,000 •
Pump Track/Bike Skills Course 10,000-20,000 • •
Rope/Adventure/Skills Course 5,000-50,000 • •
Skate Spot 4,000-10,000 • •
Eva Dell Park
10/19/2022